UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


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LIBRARY 


■ 


Oir  Fishery  Rights 


IN      III  E 


North  Atlantic 


By 

JOS.    I.    DORAN. 


Our  Fisheries "— Thos.  Jefferson. 


PHILADELPHIA  : 

ALLEN,    I. AM-:    &    SCOTT'S    PRINTING    HOUSE, 

South  Fifth  Sb 
1 888. 


Our  Fishery  Rights 


IX      III! 


North  Atlantic. 


JOS.    I.    DOR  AX. 


•'our  Fisheries "-Tlios.  [efferson. 


PHILADELPHIA: 
ALLEN,    LANE    &    SCOTT'S    PRINTING    HOUSE, 
.  ,: .  and  233  South  Fifth  Street. 

i    88. 


T 


3  - 

<^9 


PREFACE. 

Tlic  "differences"  with  Canada  about  our  fishery  rights  in 
the  North  Atlantic  arc  still  unsettled,  and  in  order  to  determine 
what  are  proper  terms  for  the  settlemenl  of  the   dispute  it  is 
necessary  to  examine  the  title  under  which  we  claim  our  rigl 
and  the  extent  to  which  we  have  been  enabled  to  enjoy  them. 

Notwithstanding  the  rejection  of  the  Chamberlain— Bayard 
treaty  by  the  Senate,  the  policy  influencing  the  present  Ad- 
ministration at  Washington,  in  its  negotiation,  is  still  in 
control;  and  as  Mr.  Cleveland  has,  by  his  message  to  Con- 
gress of  August  23d,  1888,  officially  declared  "that  the 
treat}'  just  rejected  by  the  Senate  was  well  suited  to  the 
exigency,  and  that  its  provisions  were  adequate  for  our  secu- 
rity in  the  future  from  vexatious  incidents  and  for  the  promo- 
tion of  friendly  neighborhood  and  intimacy  without  sacrific- 
ing in  the  least  our  national  pride  or  dignity,"  it  is  plain  that 
he  would  approve  another  treat}-  containing  similar  provisions. 

Mr.  Chamberlain,  speaking  at  Birmingham,  March  28th, 
18X8  [see  London  Times  of  March  29th,  18SS],  said:  "  I  ob- 
serve that  within  the  last  day  or  two  Mr.  Bayard  ["  Hear, 
hear  !  "  |,  a  distinguished  man  who  occupies  at  the  present  time 
the  position  of  Secretary  of  State  in  America  [cheers],  has 
declared  that  in  his  judgment  the  treaty  concedes  to  American 
fishermen  all  that  in  reason  and  justice  the}-  can  ask  from  the 
Government  of  Canada.  [Cheers.]  But,  if  that  be  so,  the 
refusal  of  such  a  settlement,  the  rejection  of  such  an  olive 
branch  held  out  to  the  American  people,  would  throw  a  heavy 
responsibility  on  the  shoulders  of  those  who  would  prolong 
the  state  of  irritation  and  of  dangerous  antagonism  which 
prevailed  only  two  years  ago  in  the  relations  between  Great 
Britain  and  the  United  States.  ["  Hear,  hear !  "  I  hope,  as 
I  have  said,  that  nothing  of  the  kind  will  occur;  but  in  any 
case,  even  if  the  final   result  should   be  delayed,  we   have  at 

(3) 


least  succeeded  in  putting  on  record,  in  the  most  formal  and 
authoritative  way,  the  opinion  of  three  governments,  of  the 
executives  of  three  nations,  as  to  what  constitutes  a  just  and 
honorable,  a  fair  ami  reasonable,  settlement  of  the  differences 
that  have  arisen  between  them.  That  cannot  be  left  out  of 
account  in  the  future  ;  it  must  influence,  and  in  the  end  it  must 
em,  the  final  disposal  of  the  question.  It  is  an  element  that 
I  do  not  believe  any  fair  or  reasonable  man,  either  in  Canada 
or  in  the  United  States,  would  desire  to  ignore." 

The  policy  of  the  present  Administration  on  the  question 
thus  having  been  declared,  and  Mr.  Chamberlain  having  an- 
nounced that  the  rejected  treaty  "  must  influence  and  in  the 
end  must  govern  the  final  disposition  of  the  question,"  any 
consideration  of  our  fisheries  rights  now,  or  hereafter,  will  be 
incomplete  without  an  examination  of  the  provisions  of  the 
rejected  treaty. 


The  Rights  of  the  United  States  in  ti 
North  Atlantic  Fisheries. 


The  rights  of  the  United  States  in  the  North 
Atlantic  Fisheries  arc  in  the  nature  of  a  joint 
ownership  or  tenancy  in  common  with  subjects 
of  the  British  Crown,  proprietary  rights  fully  as 
great  and  the  same  as  those  of  Canada  it  sell, 
and  they  are  rights  existing  in  the  United  States 
without  any  corresponding  right  in  British  sub- 
jects on  our  coast. 

By  Article  III.  of  the  treaty  of  peace  of  17S3,  by  which 

England  recognized  the  United  States  as  "  free,  sovereign,  ami 

independent   State,"  it  was  declared,  as   an   incident  of  their 

separate  sovereignty  : — 

"  'I'll  a  the  people  of  ti)''  I  Inited  States  sh  ill  continue  to  <  joy.  unmo- 
lested, tlv  right  to  take  fish  of  every  kind  <>n  tin.'  Grand  Bank  and  on 
all  the  other  hanks  of  Newfoundland;  also  in  the  Cult"  of  St.  Lawrence, 
and  at  all  other  places  in  the  sea  where  th  ■  inhabitants  of  both  countries 
used  at  a\w  time  here!  »fore  to  fish  :  and  also  dial  the  inhabitants  of  the 
Unit  d  S  al  -hall  have  the  liberty  to  I  ik  ■  fish  of  every  kind  on  such 
part  oi  th  c  ■  1st  of  Newfoundland  as  British  fishermen  shall  use  (but 
n  it  to  dry  or  cure  the  same  on  that  island);  and  also  on  the  coasts. 
bays,  and  creeks  of  all  other  of  His  Britannic  Majesty's  dominions  in 
America;  and  that  the  American  fishermen  shall  have  liberty  to 
dry  and  cure  fish  in  any  of  the  unsettled  hays,  harbors,  and  cr 
of  N  >  1  Scotia,  Magdalen  Islands,  and  Labrador  so  long  as  the  same 
shall  remain  unsettled  ;  bul  so  soon  as  the  same  or  either  of  them  shall 
ttled  it  shall  not  be  lawful  i.c-  th  ■  said  fishermen  to  dry  or  cure  fish 
at  such  settlement  without  a  previous  agreement  for  that  purpose  with 
the  inhabitants,  proprietors,  or  possessor-,  of  the  ground." 

"Continue  to  enjoy  unmolested  the  right  to  take  fish"  and 
other  explicit  expressions  in  the  treaty,  the  history  oi  Amer- 
ican rights  in  the  fisheries,  and  of  the  negotiations  of  the 
treaty  show  that  Article  111.  of  the  treaty  of  [783  was  a  delib- 
erate and  express  acknowledgment  of  existing  rights,  and 
not  the  grant  of  new  ones. 


[n  the  debate  on  the  treaty  in  the  House  of  Lords  the  po- 
sition taken  by  Lord  Loughborough,  that  "  the  fishery  on  the 
shores  retained  by  Britain  is  in  the  next  article  not  ceded 
but  recognized  as  a  right  inherent  in  the  Americans,  which, 
though  no  longer  British  subjects,  they  are  to  continue  to 
enjoy  unmolested — no  right,  on  the  other  hand,  being  reserved 
to  British  subjects  to  approach  their  shorts  tor  the  purpose  of 
fishing,  in  this  reciprocal  treaty"  was  not  denied. 

Cobbett's  Parliamentary  History,  vol.  23,  page  428. 

Whatever  rights  Canadian  fishermen  enjoy  in  the  fisheries 
of  tin-  North  Atlantic  were  won  by  the  men  of  New  England 
from  the  French  in  colonial  days.  While  colonies  of  Great 
Britain  "tin-  Americans  had  hitherto  almost  alone  engaged  in 
the  fisheries  on  the  coast  of  Nova  Scotia  and  the  Gulf  oi  St. 
Lawrence.  The  New  England  men  had  planned  and  had 
alone  furnished  land  forces  for  the  first  reduction  of  Cape 
Breton,  and  had  assisted  in  the  acquisition  of  Nova  Scotia 
and  Canada.  The  men  of  Massachusetts  therefore  claimed 
the  fisheries  on  their  coasts  as  a  perpetual  joint  property." 

Bancroft's  History  of  the  U.  S.,  vol.  5,  page  321  ; 

Sabine's  Report  on  the  Fisheries,  185-196; 

Winsor's  Crit.  &  Nar.  Hist.  America,  vol.  5,  pages  147, 
407. 

On  April  4U1,  1748,  a  committee  of  the  House  of  Parlia- 
ment adopted  the  following  resolution  : — 

"  Resolved,  That  it  is  the  opinion  of  this  committee  that  the  several 
provinces  and  colonies  of  Massachusetts  Bay,  New  Hampshire,  Connec- 
ticut,  and  Rhode  Island  be  reimbursed  the  expenses  tiny  have  been  at 
in  taking  and  securing  to  the  Crown  of  Great  Britain  tin-  island  of  Cape 
Breton  and  its  dependen*  \- 

Journal  of  the  House,  vol.  xxv. 

"  These  expenses,"  said  Edmund  Burke,  in  his  speech  on 
conciliation  with  America,  "were  immense  for  such  colonies. 
They  were  ah-  •  ,{?200,000  sterling;  money  first  raised  and 
advanced  on  their  public  credit." 

The  colonists  of  New  England,  at  the  Declaration  o'f  Inde- 
p  ndence,  were    enjoying  equal  rights  and  a  joint  ownership 


with  British  fishermen  in  the  North  Atlantic  fisheries, and  as 
the  United  States  were  successful  in  maintaining  their  inde- 
pendence they  insisted,  in  the  neg<  itiations  for  peace,  that  these 
rierhts  were  not  losl  to  them  by  the  severance  of  their  relations 
with  the  British  down  and  should  be  expressly  recognized 
in  the  treaty  of  peai 

These  rights  had  been  confirmed  and  defined  by  the  char- 
ters of  New  England,  and  when  the  British  Parliament  passed 
the  act  of  March,  1775,  to  prohibit  the  colonies  of  New  Eng- 
land from  fishing  on  the  banks  of  Newfoundland,  sixteen 
peers,  among  them  Lord  Camden  and  Lord  Rockingham, 
protested  against  the  passage  of  the  act,  "because  the  people 
of  New  England,  besides  the  natural  claim  of  mankind  to  the 
gifts  of  Providence  on  their  own  coast,  are  specially  entitled  to 
the  fishery  by  their  charters,  which  have,  never  been  declared 
forfeited." 

American  Archives,  4th  series,  1774-1775,  vol.  1.  page 
1690. 

By  the  charter  of  Massachusetts  Bay  of  1691  the  province 
of  Maine  and  the  territory  of  Acadia  or  Nova  Scotia,  with  the 
land-  (now  New  Brunswick)  lying  between  Nova  Scotia  and 
Maine,  were  annexed  to  Massachusetts,  and  the  northerly  and 
easterly  limits  of  the  province  of  Massachusetts  under  that 
charter  extended  to  the  river  St.  Lawrence,  and  down  the 
river  St.  Lawrence  and  along  the  Atlantic  coast  of  Nova 
-  itia  to  the  Gulf  of  St.  Lawrence.  Although  in  173K  a  sep- 
arate constitution  was  granted  to  Nova  Scotia  the  charter  ot 
Massachusetts  Bay  of  1691  continued  in  force,  and  Massa- 
chusetts and  Maine  remained  under  it  and  were  entitled  to 
the  benefit  of  its  provisions  until  the  Revolution. 

Charters    of    Massachusetts    Bay    of    [627    and     1691  ; 
Charters  and  Constitutions  of  the  U.  S.,  part  I.  pages 

932-954; 
fohn  Adams  to  Wm.  Tudor.     Adams' Works,  vol.  x., 

page  334; 
Haliburton's    Historical    and    Statistical    Account    of 

Nova  Scotia,  vol.  i.,  pages  ~i,  144,  210; 
Winsor's  Crit.  &  Nar.  Hist.  America,  vol.  5.  pages  91, 

479-4S1. 


8 

By  the  charter  of  1691  it  was  expressly  provided  that  the 
subjects  of  the  British  Crown — 

•■That  they  and  every  of  them  shall  have  full  and  free  power  and 
liberty  to  continue  and  use  their  said  trade  of  fishing  upon  the  said  c<  lasts, 
in  any  of  the  seas  thereunto  adjoining,  or  any  arms  of  the  said  seas  or 
salt-.water  rivers  where  they  have  bt  en  wont  to  fish,  and  to  build  and  set 
upon  the  lands  within  our  said  province  or  colony  lying  wash-  and  not 
then   po  I   by   particular   proprietors,  such  wharves,   stages,   and 

workhouses  as  shall  be  necessary  for  the  salting,  drying,  keeping,  and 
packing  of  their  fish,  to  be  taken  or  gotten  upon  thai  co  d  to  cut 

down  and  take  such  trees  and  other  materials  there  growing,  or  being  or 
growing  upon  any  parts  or  plai  es  lying  waste  and  not  then  in  possession 
of  particular  propri<  bus.  as  shall  be  needful  for  that  purpose,  and  for  all 
other  necessary  easements,  helps,  and  advantages  con<  erning  the  trade 
of  fishing  there,  in  such  manner  and  form  as  they  have  been  heretofore 
at  any  time  accustomed  to  do,  without  making  any  willful  waste  or  spoil 
anything,  in  these  presents  contained  to  the  contrary  notwithstanding.'' 

The  phrases  "  continue  to  enjoy  unmolested  the  right  to  take- 
fish,"  and  "  used  at  any  time  heretofore  to  fish,"  in  the  Treaty  1  »f 
1783,  are  only  repetitions  of  the  expressions  "  continue  and  use 
their  said  trade  of  fishing"  "where  they  have  been  wont  to 
fish,"  and  "as  they  have  been  heretofore  at  anytime  accus- 
tomed to  do,"  in  the  charters  of  1629  and  1 69 1  ;  and  word 
"liberty"  is  foun.d  in  the  charters  of  162;  and  1691  as  well 
as  in  the  Treaty  of  1793.  The  Treat}'  of  [783  was  little  more 
than  a  confirmation  of  the  ancient  and  chartered  rights  rec- 
ognized in  the  charters  of  1627  and  1691. 

Down  to  the  Revolution  Nova  Scotia  was  hardly  known 
except  for  its  fisheries.  In  1793  a  witness  before  a  committee 
of  Commons  spoke  of  the-  island  of  Newfoundland  "as  a 
great  English  ship  moored  near  the  banks  during  the  fishing 
season  for  the  convenience  ol  English  fishermen,"  and  that 
"  thi  rnor  was  considered  the  ship's  captain,  and  all  those 

concerned  in  the  fishing  business  as  his  crew." 

Sabine's  Report  on  the  Fisheries,  1  237-230; 

Winsor's    Crit.  cv:  Xar.  Hist,  America,  vol.  5,  page  407. 

The  men  and   ships   engaged   in    tin:    fisheries  were  mainly 

from  X   '.'.   England.      In  fact,  the  fisheries  were  almost,  if  not 


entirely,  conducted  by  the    people  of   New     England    alone. 
In  colonial  days  fish  was  the  chief  staple  commodity  of  N 
!       land,  as  tobacco  was  iii  Virginia.    The  fishing  towns  were 
thriving  and  populous,  and, so  far  as  the  people  on  this  conti- 
nent  were   concerned,   the   fisheries  on  the  shores   of  Nova 
Scotia  and  Newfoundland,  in   the  Gulf  of  St.  Lawrence,  and 
on  the  banks  were  to  all   intents  and  purposes  the  fisheries 
New  England.     The  shores  immediately  adjacent  to  the  fish- 
eries were  -parse!)- peopled,  and  were  used  only  in  conned 
with  the  fisheries.      Halifax  itself  was  settled  for  the  prosecu- 
tion of  the  fisheries.     Instead  of  the  fisheries  being  an  appurte- 
nant  to  the  neighboring  coasts,  the  coast-,  on  the  contrary, 
were  entirely  subservient   to  the  fisheries,  and  were  only  u 
as  an  accommodation  to  their  prosecution. 

Sabine's  Report  on  the  Fisheries,  pages  227,  23;,  250, 
261,  303,  390; 

Haliburton's  Nova  Scotia,  vol.  i.,  pages  243,261,. 

Hon.  Charles  Levi  Woodbury,  in  his  "Headlands"  pam- 
phlet, in  showing  the  distinct  independence  of  the  fisheries 
from  the  ownership  of  the  soil  of  the  coasts  and  the  appurte- 
nant subjection  of  the  coast  to  the  uses  of  the  common  fish- 
ery, says  : — 

"This  charter  of  William  and  Mary  remained  in  force  until  the  Amer- 
U<  volution,  though  Nova  Scotia  had  soon  passed  under  French  rule. 
The  appurtenant  character  of  the  British  colonial  coasts  to  these  fis 
ies  came  in  question  after  the  Revolution,  and  the  Treaty  of  1783  evi- 
dently is  based  upon  and  recognizes  this  principle,  that  the  fishery  was 
not  an  appurtenanl  of  the  shore  of  the  colonies  remaining  ti    1  Brit- 

ain.    It  was  not  tin-  main  object  of  the  treaty  to  give  fishery  right 

not  entitled  previously  thereto,  but  was  to  relieve  the  shores  by 
contract  of  as  much  of  these  old  uses  as  the  second  party  was  willing  to 
relinquish  of  his  own  right  therein.  Thus  while  the  United  States  yields 
the  right  to  dry  and  cure  fish  on  the  shores  of  Newfoundland,  it  retains 
the  right  to  dry  and  cine  fish  in  any  of  the  unsettled  hays,  harbors,  ami 
ks  of  Nova  Scotia,  Magdalen  fslands,  and  Labrador;  ami  where 
they  are  settled,  to  dr\  and  cure  with  the  consent  of  the  inhabitants,  pro- 
prietors of  the  grounds." 

An  express  recognition  of  our  fishery  rights  was  one  "t  the 
ultimatums  of  peace  at  the  close  ^\  the  Revolutionary  War. 


io 

but  England  naturally  opposed  this  claim  and  resisted  it  to  the 
utmost. 

••  Against  the  British  draft  of  the  article  on  the  fisheries,  John  Adams, 
with  tin-  steady  and  efficienl  support  of  Franklin  and  of  Jay,  spoke  with 
the  more  effect  as  it  introduced  an  arbitrary  restriction  ;  and  he  declared 
he  would  not  set  his  hind  to  the  treaty  unless  the  limitations  were 
stricken  out.  After  long  altercations  the  article  was  reduced  to  the  form 
in  which  it  appears  in  the  treaty,  granting  to  the  United  States  equal 
rights  with  the  British  fishermen  to  take  fish  on  the  coast  of  Newfound- 
land and  on  the  coasts,  bays,  and  creeks  of  all  other  British  dominions 
in  America." 

Bancroft's  History  of  the  U.  S.,  vol.  v,  page  579. 

"That   third  article  was  demanded  as  an  ultimatum,  and  it  was  de- 
ed that  ni  1  treaty  of  peace  should  ever  be  mack'  without  it,  and  when 
i!i     British  ministers  found  that  peace  could  not  he  made  without  that 
article  they  consented,  for  Britain    wanted  peace,   if  possible,  more  than 
we  did." 

[ohn    Adams    to  William  Thomas,  Aug.    10th,   1822, 
Adams'  Works,  vol.  x,  page  404. 

The  Continental  Congress  had  by  its  resolution  of  May 
27th,  1779,  declared  "  that  in  no  case  by  any  Treaty  of  Peace 
the  common  right  of  fishing  be  given  up." 

The  writer  of  an  article  in  a  late  number  of  the  New  York 
Tribune,  giving  a  history  of  the  American  fishery  rights,  makes 
the  following  concise  and  clear  statement  of  the  position  taken 
by  the  United  States  in  the  negotiations  for  peace  at  the  close 
of  the  Revolution  : — 

"In  the  negotiations  for  peace  al  the  close  oi  the  Revolution,  equal 
rights  to  tin-  fisheries  were  imperatively  demanded.  The  colonists  were 
unwilling  to  make  p  :ace  on  any  other  terms.  Mr.  Livingston,  Secretary 
of  State,  wrote  to  Dr.  Franklin:  'If  we  were  tenants  in  common  with 
Great  Britain  while  united  with  her,  we  still  continue  so,  unless  we  have 
relinquished  our  title.  ( )ur  rights  are  not  invalidated  by  this  separation, 
more  particularly  as  we  have  kept  up  our  claim  from  the  commencement 
ol  the  war.  and  assigned  the  attempt  off  ireat  Britain  to  exclude  us  from 
the  fisheries  as  one  oi  the  <  auses  oi  our  recurring  to  arms.'  The  Conti- 
nental Congress  instructed  [ohn  Adams  by  resolution  'that  it  is  essential 
to  the  welfare  of  all  the  United  States  that  the  inhabitants  thereof,  at  the 
expiration  of  the  war,  should  continue  to  enjoy  the  free  and  undisturbed 
exercise  of  their  common  righl  to  fish  on  the  banks  of  Newfoundland 
and  the  other  fishing  banks  and  seas  of  North  America,  preserving  in- 


1 1 

violate  the  treaties  between  France  and  the  United  States.'  The  origi- 
nal bases  ol  peace  prop<  ;ed  by  I  >r.  Franklin  were  political  independent  e, 
an  adjustment  of  boundaries,  and  unrestricted  rights  to  the  fisheries; 
and  these  were  adopted  after  a  prolonged  diplomatic  struggle,  notwith- 
standing hostile  intrigues  l>\  France  and  Spain.  John  Adams  was  as  in- 
flexible in  his  refusal  to  conclude  peace  without  obtaining  explicil  recog- 
nition of  the  fishing  francluses,  as  Samuel  Adams  was  intrepid  and  vehe- 
ment in  hisde<  larationsal  Boston  that  war  musl  be  resumed  if  those  rights 
were  denied  to  New  England.  When  the  British  Commissioners  obj< 
ed  to  the  word  'right'  in  the  fisheries  clause,  he  indignantly  exclaimed:— 

••  •  Is  there  or  can  there  be  a  clearer  right ?  In  former  treaties,  that  of 
Utrecht  and  that  of  Paris,  France  and  England  have  claimed  the  right 
and  used  the  word.  *  *  *  [f  heaven  at  the  creation  gave  a  right, 
it  is  ours  at  least  as  much  as  yours.  If  occupation,  use,  and  poss<  ssion 
give  a  right,  we  have  it  as  clearly  as  you.  If  war,  and  blood,  and  tn 
ure  give  a  right,  ours  is  as  good  as  yours.  We  have  been  continuousl) 
fighting  in  Canada,  ("ape  Breton,  and  Nova  Scotia  lor  the  defense  of  this 
fishery,  and  have  expended  beyond  all  proportion  more  than  you.  If, 
then,  the  right  cannot  be  denied,  why  should  it  not  In-  acknowledged 
and  put  out  of  dispute?  Why  should  we  leave  room  for  illiterate  fisher- 
men to  wrangle  ami  chicane?' 

•'Mr.  jay  and  Mr.  Laurens,  Associate  American  Commissioners,  un- 
equivocally supported  Mi.  Adams  in  his  refusal  to  make  peace  unless 
the  fisheries  were  included." 

England  finally  yielded  to  our  claim,  and  by  the  Treaty  of 
Peace  acknowledged  our  proprietary  title  or  rights  of  owner- 
ship in  tlie  fisheries  as  well  as  our  independence,  and  no  cor- 
responding rights  were  conferred  upon  or  conceded  to  British 
subjects  on  the  coasts  of  the  United  States. 

Our  title,  therefore,  tinder  the  Treaty  of  1783  is  one  of  joint 
ownership  with  the  subjects  of  the  British  Crown,  a  title- 
equal  to  and  as  good  as  theirs,  appurtenant  to  our  separate  sov- 
ereignty declared  and  established  by  our  War  for  [ndepend- 
ence,  and  without  any  corresponding  right  on  the  part  of 
British  subjects  on  the  coasts  of  the  United  States. 

John  Adams,  in  a  letter  to  Richard  Rush,  dated  April  5th, 
[815  (Adams'  Works,  vol.  x,  page  160),  said: — 

"2.  We  have  a  right  (1  know  not  very  well  how  to  express  it    hut 
we  have  the  right  of  British  subjects.     Not  that  we  are  now  British  sub 
jects  ;  noi  th.u  we  were  British  subjects  at  the  treaty  of  [783,  but  as  hav- 
ing been  British  subjects,  and  entitled  to  all  the  rights,  liberties,  privi- 
leges, and  immunities  of  British  subj<  1  ts,  which  we  had  pi  ssessed  before 


I  2 

the  Revolution,  which  we  never  had  surrendered,  forfeited,  or  relin- 
quished, and  which  we  never  would  relinquish  any  farther  than  in  that 
treaty  is  expressed,  our  right  was  clear  and  indubitable  to  fish  in  all 
places  in  the  sea  where  British  subjects  had  fished  or  ever  had  a  right 
to  fish. 

"3.  We  have  a  stronger  and  clearer  right  to  all  these  fi  .heries  in  their 
largest  extent  than  any  Britons  or  Europeans  ever  had. or  could  have, 
for  they  were  all  indebted  to  us  and  our  ancestors  for  all  these  fisheries. 
We  discovered  diem;  we  explored  them  ;  we  settled  the  country,  at  our 
own  expense,  industry,  and  labor,  without  assistance  from  Britain  or 
from  Europe.  We  possessed,  occupied,  exercised,  and  practiced  them 
from  the  beginning.  We  have  done  more  towards  exploring  the  best 
fishing  -rounds  and  stations,  and  all  the  harbors,  bays,  inlets. 

ts,  and  shores  where  fish  were  to  be  found,  and  had  discovered  by 
experiments  the  best  means  and  methods  for  preserving,  curing,  drying, 
and  perfecting  the  commodity,  and  done  more  towards  perfecting  the 
commerce  in  it,  than  all  the  Britons  and  all  the  resl  oi   Europe. 

"4.  We  conquered  Cap'-  Breton  and  Nova  Scotia,  dispossessed  the 
French,  both  hostile  and  neutral,  and  did  more,  in  proportion,  towards 
the  conquest  of  Canada  than  any  other  portion  of  the  British  empire  ;  and 
would  and  could  and  should  have  done  the  whole,  at  an  easier  expense  to 
ourselves,  both  of  men  and  money,  if  the  British  government  would  have 
permitted  that  union  of  colonies  which  we  proj<  cted,  planned,  earnestly 
desired,  and  humbly  petitioned.  In  short,  we  had  done  more,  in  pro- 
portion, towards  protecting  and  defending  all  these  fisheries  against  the 
French  than  any  other  part  of  the  British  empire.  For  all  these  reasons, 
if  there  is  a  people  under  heaven  who  could  advance  a  claim  or  a  color 
of  a  pretension  to  any  exclusive  privileges  in  the  fisheries,  or  any  rights 
in  our  pari  of  the  old  British  empire  more  than  another,  thai  people  are 
the  inhabitants  of  the  United  Slates  of  America,  especially  of  New  Eng- 
land. But  we  set  up  no  claims  but  tho  1  rted  and  acknowledged  in 
treaty  of  17S3.  These  we  do  assert,  and  these  we  will  have  and 
maintain." 

also   Letter   K.    R.   Livingston  to   Benj.  Franklin, 
Jan.  /,  [782  ;   Spark's  Franklin,  vol.  9,  page  135. 

In  the  treaty  of  peace  made  at  Ghent  between  Great  Britain 
and  the  United  States,  at  the  termination  of  the  War  of  1812, 
no  reference  is  made  to  the  fisheries.  During  the  negotiation 
of  that  treat)-  Great  Britain  claimed  that  the  fishing  rights 
within  the  limits  of  British  Sovereignty  reserved  to  the  United 
States  in  the  Treaty  of  1783  were  annulled  by  the  war;  Corn- 
mi  1  ,  Goulding,  one  of  the  British  Commissioners,  stat- 
ing that  although  it  was  not  intended  to  contest  the  right  of 
the  United  Stat'--,  to  the  fisheries,  "  yet,  so  far  as  respected  the 


13 


concessions  to  land  and  dry  fish  within  the  exclusive jurisd 
tion  of  the  British,  it  was  proposed  not  to  renew  that  without 
an  equivalent." 

Memoirs  J.  Q.  Adams,  vol.  2,  page  6 

lh:  United  States  maintained,  however,  that  our  fishery 
rights  and  liberties  stood  on  the  same  foundation  as  our  right 
to  independence  and  our  territory;  that  the  Treaty  of  1783 
conveyed  no  new  rights,  but  acknowledged  and  confirmed 
existing  rights  and  liberties  enjoyed  before  the  War  of  Inde- 
pendence; that  the  treaty  was  the  partition  of  an  empire, 
a  perpetual  agreement — one  of  those  fundamental  agreements 
incorporated  into  the  very  existence  of  the  United  States  there- 
from; and  that  our  fishery  rights  and  liberties  were  no  more 
affected  by  the  War  of  1S12  than  our  right  of  independence; 
that  unlike  another  class  of  treaties,  the  Treaty  of  1783  was 
to  be  regarded  as  perpetual  and  of  the  nature  of  a  deed  in 
which  the  fisheries  were  an  appurtenant  of  the  soil  conveyed, 
and  that,  therefore,  no  stipulation  was  necessary  to  secure  the 
perpetuity  of  the  append  ige  more  than  of  the  territory  itself. 

Wheaton,  in  his  International  Law,  gives  the  following  ac- 
count of  the  claim  of  Great  Britain  and  the  position  of  the 
United  States:— 

"During  the  negotiation  al  Ghent,  in  [Si4,  the  British  plenipot< 
tiaries  gave  notice  thai  their  government  'did  not  intend  to  grant 
to  til-  United  States,  gratuitously,  the  privileges  formerly  granted  by 
treaty  to  them  of  fishing  within  the  limits  of  the  British  sovereignty,  and 
of  using  the  shores  of  the  British  territories  for  purposes  connected  with 
the  British  fisheries.'  In  answ  ei  to  this  declaration  tin-  American  1 
ipotentiaries  stated  that  thej  were  '  not  authorized  to  bring  into  discus- 
sion any  of  the  rights  or  liberties  which  the  United  States  have  hei 

oyed  in  relation  thereto  ;  from  their  nature,  >\n<\  from  the  pecu 
liar  eh. 1:  treat)  of  [783,  by  which  they  were  recognized,  no 

further  stipulation  has  been  deemed  necessary  by  the  <  '.■  »v<  rnment  oi  the 
United  States  to  entitle  them  to  the  full  enjoyment  o(  them  all.' 

••  'The  treaty  of  p  acec<  m<  lud  :d  at  ( ihent,  in  [814,  the  refore,  contained 
no  stipulation  on  the  subject  ;  and  the  British  Government  subsequent^ 
expressed  its  intention  to  exclude  the  American  fishing  vessels  from  the 
liberty  of  fishing  within  one  marine  league  of  the  shores  of  the  British 
territories  in  North  America,  and  from  that  of  drying  ami  curing  theii 
fish  on  the  mix  td  d  parts  ol  those  territories,  and,  with  the  consent  ol 


•4 

the  inhabitants,  within  those  parts  which  had  become  settled  since  the 
peace  of  17s;,. 

"  In  discussing  this  question,  the  American  minister  in  London,  Mr. 
J.  Q.  Adams,  stated,  that  from  the  time  the  settlement  in  North 
America,  constituting  the  United  States,  was  made,  until  their  separa- 
tion from  Great  Britain  and  their  establishment  as  distinct  sovereignties, 
these  liberties  of  fishing,  and  of  drying  and  curing  fish,  had  been  en- 
joyed  by  them,  in  common  with  the  other  subjects  of  the  British  empire. 
In  point  of  principle  they  were  pie  eminently  entitled  to  the  enjoyment; 
and,  in  point  of  fact,  they  had  enjoyed  more  of  them  than  any  other  portion 
of  the  empire;  their  settlement  of  the  neighboring  country  having  nat- 
urally led  to  the  discovery  and  improvement  of  these  fisheries  ;  and  their 
proximity  to  tin-  places  where  they  were  prosecuted,  having  led  them  to 
the  discovery  .if  the  most  advantageous  fishing  grounds,  and  given  them 
facilities  in  the  pursuit  of  their  occupation  in  those  regions,  which  the  re- 
moter parts  of  die  empire  could  not  possess.  It  might  be  added,  that 
they  had  contributed  their  full  share,  and  more  than  their  share,  in  se- 
curing the  conquest  from  fiance  of  the  provim  es  on  the  coasts  of  which 
these  fisheries  were  situated. 

"  It  was  doubtless  upon  considerations  such  as  these  that  an  express 
stipulation  was  inserted  in  the  treaty  of  [783,  recognizing  the  rights  and 
liberties  which  had  always  been  enjoyed  by  the  people  of  the  United 
States  in  these  fisheries,  and  declaring  that  they  should  continue  to  enjoy 
the  right  of  fishing  on  the  Grand  Bank,  and  other  places  of  common 
jurisdiction,  and  have  the  liberty  of  fishing,  and  drying  and  curing  their 
fish,  within  the  exclusive  British  jurisdiction  on  the  North  American 
its,  to  which  they  had  been  accustomed  whilst  they  formed  a  part  of 
the  British  nation.  This  stipulation  was  a  part  of  that  treaty  by  which 
Hi-,  Majesty  acknowledged  the  United  States  as  free,  sovereign,  and  in- 
pendent  States,  and  that  he  treated  with  them  as  such. 

••  It  could  not  be  necessary  to  prove  that  this  treaty  was  not,  in  its  gen- 
eral provisions,  one  of  those  whii  h,  by  tin-  common  understanding  and 
usage  of  civilized  nations,  is  considered  as  annulled  by  a  subsequent 
war  between  the  same  parties.  To  suppose  that  it  is,  would  imply  the 
inconsistency  and  absurdity  of  a  sovereign  and  independent  State,  liable 
to  forfeit  its  right  of  sovereignty  by  the  act  of  exercising  it  on  a  declara- 
tion of  war.  lint  the  very  words  of  the  treaty  attested  that  the  sovereignty 
and  independence  of  the  United  States  were  not  considered  as  grants 
from  His  Majesty.  They  were  taken  and  expressed  as  existing  before 
the  treaty  was  made,  and  as  then  only  first  formally  recognized  by  Great 
Britain. 

/'1  ■  1  isely  of  /he  same  nature  were  the  rights  and  liberties  in  the 
fisheries.  They  were,  in  no  respect,  grants  from  the  King  of  Great 
Britain  to  the  United  States;  but  the  acknowledgment  of  them  as 
rights  and  liberties  enjoyed  before  the  separation  oi  the  two  coun- 
tries, and  which  it  was  mutually  agreed  should  continue  to  be  enjoyed 
under  the  new  relations  which  were  to  subsist  between  them,  constituted 
the  essence  of  the  article  com  erning  the  fisheries.     The  very  peculiarity 


'5 

of  the  stipulation  was  an  evident  e  thai  it  was  not,  on  either  side  under- 
Stood  or  intended  as  a  grant  from  one  sovereign  State  to  another.  1  lad 
it  been  so  understood,  neither  could  the  I  United  States  have  <  laimed,  nor 
would  Great  Britain  have  granted,  gratuitously,  any  such  concession. 
There  was  nothing,  either  in  the  state  of  things,  or  in  the  disposition  of 
the  parties,  which  could  have  led  to  such  a  stipulation  on  the  part  of 
<  ,1.  .u  Britain,  as  on  the  ground  of  a  grant  without  an  equivalent. 

••  It'  the  stipulation  by  the  treaty  of  [783  was  one  of  the  conditions  by 
which  His  Majesty  acknowledged  the  sovereignty  and  independence  ol 
the  United  States ;  if  it  was  the  mere  recognition  of  rights  and  liberties 
previously  existing  and  enjoyed,  it  was  neither  a  privilege  gratuitously 
-rant.-d.  nor  liable-  to  be  forfeited  by  the  mere  existence  of  a  subsequ 
war.  [f  it  was  not  forfeited  by  the  war,  neither  could  it  be  impaired  by 
the  declaration  of  Great  Britain  at  Ghent,  that  sin-did  not  intend  to  renew 
the  grant.  Where  there  had  been  no  gratuitous  concession,  there  could 
be  none  to  renew;  the  rights  and  liberties  of  the  United  States  could 
not  be  canceled  by  the  declaration  of  the  British  intentions.  Nothing 
could  abrogate  them  but  a  renunciation  by  the  United  States  them- 
selves." 

Lawrence's  Wheaton's  International  Law,  page  463  ; 

See  also  Letters  bf  John  Adams,  vol.  x,  Works  of  John 
Adams,  pages,  97,  131,  [36,  159.  354.  and  403; 

Opinion  C.  A.  Rodney  to  President  Monroe,  Nov.  3, 
[818;  Monroe  MSS.,  Department  of  State;  referred 
to  in  Elliott's  Northeastern  Fisheries,  page  45. 

If  the  British  pretension  hail  been  insisted  on  the  war 
would  have  been  continued,  as  James  Monroe's  instructions 
to  the  American  commissioners  were  imperative  that  "  the 
fishery  rights  of  American  citizens  must  not  be  discussed,  and 
if  the  British  demand  their  surrender  all  further  negotiations 
must  cease." 

Finally  the  commissioners,  without  inserting  any  provis- 
ion with  regard  to  the  fisheries,  signed  the  formal  treaty 
known  as  the  treaty  of  Ghent.  The  first  article  of  this  treaty 
provided  that  "all  territories,  places,  and  possessions  what- 
soever taken  by  either  part}'  from  the  other  during  the  war 
should  be  restored  without  delay."  This  in  itself  was  an 
ample  refutation  of  the  British  claim.  The  fisheries  wei 
valuable  "  possession."  If  the  British  took  them  from  us  by 
the  war,  they  were  obliged  by  the  letter  of  the  treaty  to  re- 
store them  to  us  without  delay. 


i6 

The  war,  however,  had  shown  Great  Britain  that  her  naval 
prestige  was  in  danger,  and  that  the  chief  source  of  that  dan- 
was  in  the  fishing  towns  of  New  England.  From  that 
moment  British  statesmen  directed  their  energies  to  the  task 
of  discouraging  or  destroying  the  fishing  industry  of  that  por- 
tion of  the  .United  Slates. 

During  the  next  year  the  British  sloop-of-war  "  Jaseur " 
sailed  along  the  northeastern  fishing  -rounds,  and  notified 
all  American  fishing  vessels  to  not  come  within  sixty  miles  of 
the  shore.  The  British  Government,  onbeing  notified  of  this 
action,  expressed  disapproval  of  it,  but  so  many  other  annoy- 
ances were  heaped  on  our  fishermen  that  Richard  Rush  and 
Albert  Gallatin  were  sent  to  England  to  make  a  new  and  per- 
manent convention,  which  it  was  hoped  would  be  acceptable 
i-  England  and  enable  our  fishermen  to  pursue  their  occupa- 
tion undisturbed. 

They  negotiated  the  Treaty  of    181 8,  Article   I.  of  which 

provides  :  — 

"  Whereas  differences  have  arisen  respecting  the  liberty  claimed  by 
the  United  Mites  for  the  inhabitants  thereof,  to  take,  dry,  and  run-  fish  on 

ain  coasts,  bays,  harbors,  and  creeks  of  His  Britannic  .Majesty's  do- 
minions in  America,  it  is  agreed  between  the-  high  contracting  parties 
that  the  inhabitants  of  the  said  United  Stat—  shall  have,  forever,  in  com- 
mon with  the  subjects  of  His  Britannic  Majesty,  the  liberty  to  takefish  of 

n  kind  on  that  part  of  the  southern  coast  of  Newfoundland  which 
extends  from  Cape  Ray  to  the  Ramea  Islands;  on  the  western  and 
northern  coast  of  Newfoundland,  from  the  said  Cape  Ray  to  the  Quir- 
pon  Islands;  on  the  shore  of  the  Magdalen  Islands;  and  also  on  the 
bays,  harbors,  and  creeks,  from  Mount  Joli,  on  the  southern 
coast  of  Labrador,  to  and  through  the  Straits  of  Belleisle,  and  thence 
northward,  indefinitely,  along  the  roast,  with. ait  prejudice,  however,  to 
any  of  the  exclusive  rights  of  th<  I  ludson's  Bay  Company  ;  and  thatthe 
American  fishermen  shall  also  have  liberty,  forever,  to  dry  and  cure  fish 
in  any  of  the  unsettled  bays,  harbors.  eks  of  the  southern  part  of 

the  ,   .         ,:    Newfoundland  hereabov<    d<    cribed,  and  of  the  coast  of 

irador  ;  but  so  soon  as  the  same  or  any  portion  thereof  shall  be  set- 
tledit  shall  not  be  lawful  for  the  said  fishermen  to  dry  or  cure  fish  at 
such  portion  so  settled,  without  previous  agreement  for  such  purpose 
with  the  inhabitants,  proprietors,  or  pi  >rs  of  the  grourfd  ;  and  the 

United  States  hereby  renounce,  forever,  any  liberty  heretofore  enjoyed 
or  claimed  by  the  inhabitants  thereof  to  take,  dry,  or  cure  fish  on  or 
within  three  marine  mile-,  of  any  of  the  coasts,  bays,  creeks,  or  harbors 
oi  His  Britannic  Majesty's  dominions  in  Americanot  included  within  the 


'7 

above-mentioned  limits:  Provided,  however,  That  the  American  fisher- 
men shall  be  admitted  to  enter  su<  h  bays  or  harbors  for  the  purpo 

shelter  and  of  repairing  damages  ther  in,  o!    purchasing  w 1.  ami  of 

obtaining  water,  and  for  no  other  purpose  whatever.  Bui  they  shall  1"- 
under  such  restrictions  as  may  I"-  no  essarj  to  prevent  their  taking,  dry- 
ing, <>r  curing  fish  therein,  or  in  any  oth  -r  manner  whatever  abusing  the 
privileges  hereby  reserved  to  them." 

By  this  treaty  the  joint  ownership  or  tenancy  in  common  of 
the  United  States  was  recognized  and  extended  "forever,"  in 
return  for  certain  restrictions  of  our  rights.  This  was  a  gen- 
uine triumph  of  American  diplomacy. 

In  a  letter  addressed  to  John  Quincy  Adams,  Secretary  of 
State,  on  October  20th,  1818,  Messrs.  Gallatin  and  Rush 
said  :  — 

"The  most  difficult  part  of  the  negotiation  related  to  the  permanence 

of  thu  right.     To  obtain  the  insertion  in  the  body  of  the  convention  i 
provision  declaring  that  that  right  should  nut  be  abrogated  by  war  was 
impracticable.    All  that  could  be  done  was  to  express  the  article  in  such 

manner  as  would  not  render  the  right  liable  to  be  thus  abrogated.  'I  he 
words  '  lor  ever  '  were  inserted  for  that  purpose.  The  insertion  of  the 
words  '  for  ever  '  was  strenuously  resisted.  We  declared  that  we  would 
not  agree  to  any  article  on  the  subject  unless  the  words  were  preserved, 
or  in  case  they  should  enter  on  the  procotol  a  declaration  impairing  their 
effect.  It  will  also  be  perceived  that  we  insisted  on  the  clause  by  which 
the  United  States  renounce  their  right  to  the  fisheries  relinquished  by 
tin-  convention,  that  clause  having  been  omitted  in  the  fust  British  coun- 
ter-project. We  insist*  d  on  it  with  the  view,  first,  of  preventing  any 
implication  that  the  fisheries  secured  to  us  were  a  new  -rant,  and  i  t 
placing  the  permanence  of  the  rights  secured  and  of  those  renounced 
precisely  i  n  tin-  same  footing  ;  second,  of  its  bein.i;  expressh  |  that 

our  renunciation  extended  only  to  the  distance  of  three  miles  from  die- 
coasts.  This  last  point  was  the  more  important,  as  with  the  exception 
of  the  fishing  in  open  boats  in  certain  harbors,  it  appeared  tli.it  tin  fish- 
ing ground  on  the  whole  coast  of  Nova  Scotia  is  more  than  three  miles 
from  the  shores.  It  is  in  that  point  of  view  that  the  privilege  of  enter- 
ing the  ports  for  shelter  is  useful,  and  it  is  hoped  that  with  that  provision 
a   considerable   portion    of   the  actual    fisheries   on    that    coast     of  N 

Scotia  i  will,  notwithstanding  the  renunciation,  be  preserved." 

John  Quincy  Adams,  Secretary  of  State  during  this  peri<  d, 
referring  to  the  Treat}',  said: — 

"We  have  gained  by  the  convention  of  1818  an  adjustment  of  the 

contest  of  our  whole  principle.     The  i  onvention  restricts  the  liberti 
some  small  degree,  but  it  enlarges  them  probably  in  a  degree  not 


IS 

useful.  It  has  secured  the  whole  coast  fishery  of  every  part  of  the  Brit- 
ish dominions,  except  within  three  marine  miles  of  the  shores,  with  the 
liberty  of  using  all  the  harbors  for  shelter,  for  repairing  damages,  and  for 
obtaining  wood  and  water.  It  lias  secured  the  whole  participation  in 
the  Labrador  fisheries,  the  most  important  part  of  the  whole,  and  of 
which  it  was  at  Ghent  peculiarly  the  intention  of  die  British  Government 
at  all  events  to  deprive  us.  The  convention  lias  also  secured  to  us  the 
right  of  drying  and  curing  the  fish  on  a  part  of  the  island  of  Newfound- 
land, which  had  not  been  enjoyed  under  the  treaty  of  1783;  it  has  nar- 
rowed down  the  pretensions  of  exclusive  territorial  jurisdiction  with 
reference  to  those  fisheries  to  three  marine  miles  from  the  shores.  Upon 
the  whole  1  consider  this  interest  as  secured  by  the  convention  of  1818 
in  a  manner  as  advantageous  as  it  had  been   by  the  treaty  of  1783." 

Adams  and  Russell,  page  241. 

Hon.  Charles  Levi  Woodbury,  in  an  open  letter  on  the  fish- 
cries    dispute,   published    in   the    American    Law    Review   of 

May-June,  1887,  page  442,  speaking  of  these   rights,  says  : — 
i 
"The  rights,  elaborately  defined   by  treaty,  which  we  possess  along 

the  coasts  and  in  the  bays,  harbors,  and  ports  of  British  North  America, 
belong  as  fully  to  the  United  States  as  does  the  Capitol  or  the  White 
House  at  Washington.  They  are  the  trophies  of  the  centuries  of  priva- 
tion, toil,  and  bloodshed  through  which  our  colonial  ancestors  secured 
themselves  from  foreign  influences. 

"There  is  not  a  foot  of  British  North  America,  from  Lake  Superior  to 
the  Atlantic,  to  the  winning  of  which  from  France  our  American  ances- 
tors did  not  bear  their  share  in  arms.  The  memories  of  Lake  George, 
Frontenac,  Detroit,  Quebec,  and  Louisbourg  are  our  heirlooms  as  well 
as  England's.  Great  Britain's  fishing  rights,  in  or  adjacent  to  what  is 
now  British  North  America,  were  never  exclusive.  Whatever  pertained 
to  the  great  common  of  fisheries,  whatever  enured  from  the  conquest  ot 
Canada,  equally  pertained  and  enured  to  us  as  to  her.  The  treaty  ot 
1783  regulated  mutual,  joint,  and  several  uses  in  a  part  of  these  old  com- 
mon or  acquired  fishery  rights,  and  that  of  1S18  was  a  partial  re-arrange- 
ment thereof.  In  said  treaties,  no  pretension  can  be  found  that  Great 
Britain  then  or  ever  before  had  any  exclusive  ownership  over  the  fish- 
eries of  the  Northeast." 

It  is  to  be  noticed  that  the  Treaty  of  1783  uses  the  words 
"right"  and  "liberty"  apparently  as  of  different  meaning. 
"  Right"  is  used  in  one  clause,  "liberty"  in  the  other.  John 
Adams  explains  how  the  word  liberty  got  into  the  Treaty  of 
1783  :  '  The  word  right  was  in  the  article  as  agreed  to  by  the 
British  ministers,  but  they  afterwards  requested  that  the  word 
liberty  might  be  substituted    instead    of  right.     They  said  it 


•9 

amounted  to  the  same  thing,  for  liberty  was  right,  and  privilege 
was  right ;  but  the  word  right  might  be  more  unpleasing  to 
the  people  of  England  than  liberty;  and  we  did  not  think  it 
necessary  to  contend  for  a  word." 

John   Adams   to   Wm.  Thomas,  August   ioth,    1822, 
Adams'  Works,  vol.  x.,  page  403. 

The  charters  of  Massachusetts  Bay  of  1627  and  1691  had 
used  "  liberty  "  to  secure  the  right  to  fish,  and  there  "  liberty  " 
had,  so  far  as  language  could,  effectually  and  permanently 
secured  the  right  to  fish,  as  if  the  word  "right"  had  been 
used.  The  letter  of  John  Adams  shows  why  and  with  what 
understanding  "  liberty  "  was  used  in  the  Treat}-  of  1783,  and 
therefore  no  distinction  can  be  drawn  as  to  the  meaning  of 
"  right  "  and  "  liberty"  in  the  Treat}'  of  1783. 

The  British  contention  as  to  the  abrogation  of  our  fishing 
privileges  by  the  War  of  18 12  was  limited  during  the  negoti- 
ation of  the  Treaty  of  1818  to  our  "  fishing  liberty,"  and  did 
not  extend  to  our  "  fishing  rights."  This  accounts  for  no  ref- 
erence to  our  "fishing  rights"  in  the  Treaty  of  1818. 

Lord  Bathurst,  in  his  letter  of  October  30th,  181  5,  to  John 
Quincy  Adams,  admitted  the  force  of  the  argument  that  the 
Treat}-  of  1783  was  the  partition  of  an  empire,  but  endeavored 
to  draw  a  distinction  between  "rights  "  and  "  liberties?  admit- 
ting that  our  fishing  "  lights  "  were  not  abrogated  by  the  War 
of  18 1 2,  and  claimed  that  the  "  liberty  to  fisli  "  was  different 
from  the  "  right  to  fish,"  and  was  annulled  by  the  War  of  1812. 

"  If  these  liberties,"  lie  says,  "thus  granted  were  to  be  perpetual  ami 
indefeasible  as  the  rights  previously  recognized,  it  is  difficult  to  conceive 
that  the  plenipotentiaries  of  the  United  States  would  have  admitted  a 
variation  of  language;  and  above  all,  that  they  should  have  admitted  so 
strange  a  restriction  of  a  perpetual  ami  indefeasible  right  as  that  with 
which  the  article  concludes,  which  leaves  a  right  so  practical  and  so  bene- 
ficial as  this  is  admitted  to  be,  dependent  on  the  will  of  British  subjects, 
in  their  character  as  inhabitants,  proprietoiS,*or  possessors  of  the  soil, 
to  prohibit  its  exercise  altogether.  It  is  surely  obvious  that  the  word 
irighV  is  throughout  the  Treaty  used  as  applicable  to  what  the  United 
States  were  to  enjoy  by  virtue  of  a  recognized  independence,  and  the 
word  'liberty'  to  what  they  were  to  enjoy  as  concessions  Strictly  de- 
pendent on  the  treaty  itself." 

See  Annals  of  Congress,  15th  Cong.,  2d  Sess.,  p.  14^3. 


20 


The  claim  seriously  presented  by  the  British  Commission- 
ers during  the  negotiation  of  the  Treaty  of  Ghent  had  not  in 
fact  gone  any  further. 

Memoirs  J.  Q.  Adams,  vol.  J,  page  6. 

John  Quincy  Adams,  in  his  reply  to  Lord  Bathurst,  com- 
pletely answered  the  position  taken  by  the  British  Govern- 
ment and  established  that  the  liberty  to  fish,  "  far  from  includ- 
ing in  itself  either  limitation  of  time  or  precariousne:,s  of  ten- 
ure,  is  essentially  as  permanent  as  that  of  right."     He  said  : — 

"That,  previous  to  the  independence  of  the  United  States,  their  peo- 
ple, as  British  subjects,  had  enjoyed  all  the  rights  and  liberties  in  the 
fisheries  which  form  the  subject  of  the  present  discussion  ;  and  that,  when 
the  separation  of  the   two   parts   of  the  nation  was  consummated  by  a 
mutual  compact,  tin-  treaty  of  peace  defined  the  rights  and  liberties 
which,  by  the  stipulation  of  both  parties,  the  United  States  in  their  new 
character  were  to  enjoy.     By  the  acknowledgment  of  the  independence 
of  the  United  States,  Great  Britain  bound  herself  to  treat  them,  thence- 
forward, as  a  nation  possessed  of  all  the  prerogatives  and  attributes  of 
sovereign   power.     The   people   of  the  United    States   were,    thencefor- 
ward, neither  bound  to  allegiance  to  the  sovereign  of  Great  Britain,  nor 
entitled  to  his  protection  in  the  enjoyment  of  any  of  their  rights  as  his 
subjects.     Their  rights    and   their  duties  as  members  of  a  State  were 
defined  and  regulated  by  their  own  constitutions  and  forms  of  govern- 
ment.     But  there  were  certain  rights  and  liberties  which   had  been  en- 
joyed by  both  parts  of  the  nation  while  subjects  of  the  same  sovereign, 
which  it  was  mutually  agreed  they  should  continue  to  enjoy  unmolested; 
and,  among  them,  wen-  the  rights  and  liberties  in  those  fisheries.     The 
fisheries  on  the  banks  of  Newfoundland,  as   well  in  the  open  seas  as  in 
the  neighboring  bays,  gulfs,  and  along  the  coasts  of  Nova  Scotia  and 
Labrador  were,  by  the  dispensations  and  the  laws  of  nature,  in  substance, 
only  different  parts  of  one  fishery.     Those  of  the  open  sea  were  enjoyed 
not  as  a  common  and  universal  right  of  .ill  nations;  since  the  exclusion 
from  them  of  France  and  Spain,  in  whole  or  in  part,  had  been  expressly 
Stipulated  by  those  nations,  and  no  other  nation  had,  in  fact,  participated 
in  them.     It  was,  with  some  exceptions,  an  exclusive  possession  of  the 
British  nation ;  and  in  the  treaty  of  separation  it  was  agreed  that  the 
rights  and  liberties  in  them  should  continue  to  be  enjoyed  by  that  pai  t  oi 
the  nation  which  constituted  the  United  States;  that  it  should  not  be  a 
eral,  but  as,  between  ( ireal  Britain  and  the  United  States,  a  common 
fishery.     It  was  necessary  tor  the  enjoyment  ol  this  fishery,  to  exercise 
it   in   conformity    to    the    habits   of    the    species   of    game    of  which    it 
consisted.     The  places  frequented  by  the  fish  were  those  to  which  the 
fishermen  were  obliged  to  n    ort,  and  these  occasionally  brought  them 
to  the  borders  of  the  British  territorial  jurisdiction.     It  was  also  w 


21 

sary,  for  the  prosecution  ol  a  pari  of  this  fishery,  thai  the  fish,  when 
caught,  should  be  immediatelj  cured  and  dried,  which  could  only  be 
done  on  the  rocks  or  shores  adjoining  the  places  where  they  were  caught  ; 
the  aco  ;  to  these  rocks  and  shores,  for  those  purposes,  was  secured  to 
the  people  of  the  United  States,  as  in<  idental  and  necessary  to  the  en- 
joymenl  oi  the  fishery  ;  it  was  Hide  more  than  an  access  to  naked  rocks 
and  desolate  sands  ;  but  it  was  as  permanently  secured  as  the  right  to 
the  fishery  itself.  No  limitation  was  assigned  of  time.  Provision  was 
made  for  the  proprietary  rights  which  might  at  a  distant  and  future  pe- 
riod arise-  by  the  settlemenl  oi  places  then  uninhabited;  but  no  other 
limitation  was  expressed  or  indicated  by  the  terms  of  the  treaty,  and  no 
other  can,  either  from  the  letter  or  spirit  oi  the  article  be  inferred. 

"  It  was  precisely  because  they  might  have  lost  their  portion  of  this 
joint  national  property,  to  the  acquisition  of  which  they  had  contributed 
more  than  their  share,  unless  a  formal  article  of  the  treaty  should  secure 
it  to  them,  that  the  article  was  introduced.  By  the  British  municipal 
laws,  which  were  the  laws  of  both  nations,  the  property  of  a  fishery  is 
not  necessarily  in  the  propriet*  »r  of  the  soil  where  it  is  situated.  The  soil 
may  belong  to  one  individual,  and  the  fishery  to  another.  The  right  to 
the  soil  may  be  exclusive,  while  tin-  fishery  may  be  free,  or  held  in  com- 
mon. And  thus,  while  in  the  partition  of  the  national  possessions  in 
North  America,  stipulated  by  the  treaty  of  1783,  thejurisdiction  over  the 
shores  washed  by  the  waters  where  this  fishery  was  placed  was  reserved 
to  Great  Britain,  the  fisheries  themselves,  and  t  lie  accommodations  essen- 
tial to  their  prosecution,  were,  by  mutual  compact,  agreed  to  he  continued 
in  common." 

Annals  of  Congress,  15th  Cong.,  2d  Sess.,  p.  1466. 

As  our  "rights"  under  the  Treaty  of  1783  were  not  ques- 
tioned, no  reference  whatever  was  therefore  made  to  them  in 
the  Treaty  of  1818,  and  the  Treaty  of  1818  was  intended  to 
operate  upon  the  "  liberty  "  to  take  fish  alone.  We  are  con- 
sequently left  in  possession,  unaffected  by  the  Treaty  of  I S 1 8, 
of  all  "rights"  we  had  under  the  Treaty  o(  17S3  to  fish  on 
the  Grand  Bank,  on  all  the  other  hanks  of  Newfoundland, 
aKo  in  the  Gulf  of  St.  Lawrence,  and  elsewhere  in  the  sea 
where  we  used  any  time  previously  to  fish. 

"  Sir,  this  treat \  operates  upon  the  liberty  alone,"  said  the  Hon.  Zeno 
S,  udder,  referring  to  the  Treaty  of  [818,  in  the  House  of  Representa- 
tives, August  [2th,  [852,  "which  Lord  Bathurst  contended  had  been 
affected  by  the  war  ;  hut  not  one  word  is  said  or  contained  in  it  relative 
to  the  right  "\  fishery,  which  Lord  Bathurst  admitted  was  not  affected 
by  the  war.  Now,  sir,  let  me  ask  this  committee  and  the  country  to  refer 
to   the    Treaty  of   [783,  and  see   in  what    part  of  these   fisheries  we   had  a 


•»  "> 


right  instead  of  a  liberty.  Sir,  anion-  other  places  we  had  and  have  still 
a  title  of  right  in  the  whole  of  the  Gulf  of  St.  Lawrence.  Let  the  British 
ministry  or  any  other  power  on  earth  construe  the  Treaty  of  1818  as  they 
will,  respecting  the  liberty  on  the  bay,  creek,  and  harbor,  still  it  cannot 
affect  the  title  of  right  in  the  Gulf  of  St.  Lawrence,  which  has  never 
been  modified  or  altered  since  tin- Treaty  of  [783,  and  the  subsequent 
expression  of  Lord  Bathurst,  that  it  could  not  be  modified  or  altered..  I 
will  leave  it  to  the  fishermen  of  the  country  to  define  the  extent  of  the 
Gulf  of  St.  Lawrence  to  contain,  besides  the  Magdalen  Islands  and 
Prince  Edward  Island,  many  other  important  coasts,  shores,  &C,  which 
are  resorted  to  for  our  fishing  purposes." 

Cong,  (ilohc,  32d  Cong.,  1st  Sess.,  vol.  25,  p.  927. 

It  is  therefore  important  to  hoar  in  mind  that  at  the  nego- 
tiation of  the  Treat}-  of  1818  Great  Britain  expressly  acknowl- 
edged our  fishing  "  rights  "  were  not  abrogated  by  the  War 
of  18 1 2,  that  our  rights  recognized  and  secured  under  the 
Treaty  of  1783  were  not  affected  or  intended  to  be  affected  by 
the  Treaty  of  1818,  the  United  States  never  admitted  that  the 
"  liberty  to  fish  "  was  lost  by  the  War  of  [812,  and  that  by  ac- 
ceptance from  us  of  a  renunciation  of  a  portion  of  the  "  liberty  " 
to  take  fish  the  British  Government  implicitly  acknowledged 
that  our  fishing  liberties  tinder  the  Treaty  of  1783  were  not 
abrogated  by  the  War  of  1X12. 

John  Adams,  speaking  of  the  Treaty  of  1818,  said  : — 

"  The  United  States  have  renounced  forever  that  part  of  the  fishing 
liberties  which  they  had  enjoyed,  or  claimed,  in  certain  parts  of  the  ex- 
clusive jurisdiction  of  the  British  Provinces  and  within  three  marine  miles 
of  the  shores.  The  first  article  of  this  convention  affords  a  signal  testimo- 
nial of  the  correctness  of  the  principle  assumed  by  the  American  pleni- 
potentiaries at  Ghent  for  as  by  accepting  the  express  renunciation  by  the 
I  'ni/ett  States  of  a  small  portion  of  the  pi  ivilege  in  Question,  ami  by  con- 
firming and  enlarging  all  tin-  remainder  of  the  privilege  forever,  the 
British  Government  have  implicitly  acknowledged  that  the  liberties  of  the 
third  article  of  the  Treaty  of  IJ83  have  not  been  abrogated  by  the  rear." 

The  treaty  of  1818  worked  well  for  about  twenty  years, 
until  disturbing  elements  arose.  A  new  generation  of  Cana- 
dians had  grown  up,  knowing  or  caring  nothing  for  the  treaty 
of  1783,  or  of  our  proprietary  rights  or  joint  ownership  in 
the  fisheries.  The  mackerel  fishery  in  the  Gulf  of  St.  Law- 
rence had  been  discovered  to  be  of  great  value.  The  various 
non-intercourse  acts  had   been    repealed,  and   the   markets  of 


23 


the  United  States  were  open  under  certain  restrictions  t<> 
Canadian  enterprise.  II  those  restrictions  could  be  entirely 
removed  Canada  would  be  immediately  and  immeasurably 
benefited,  and  it  was  thought  that  the  quickest  and  surest 
way  to  obtain  this  result  would  be  to  harass  American  fisher- 
men until  they  cried  out  for  relief. 

To  furnish  the  pretext  the  pretension  was  revived  that  the 
entire  fishing  rights  and  liberties  of  the  United  States  under 
the  Treat}'  of  [783  were  annulled  by  the  war  of  18  I  2,  and  the 
announcement  was  made  that  American  ^fishermen  had  no 
rights  except  those  which  were  granted  them  l>y  thetTreaty  of 
[8l8,  and  that  the  terms  of  that  treaty  would  be  literally  exe- 
cuted until  such  concessions  were  made  as  Canada  desired. 
Everything  possible  to  harass  and  anno}-  our  fishermen  was 
the  policy  adopted  and  persistently  pursued.  The  spirit  in 
which  Canada  has  always  dealt  with  our  treaty  rights  is  well 
illustrated  by  what  was  lately  said  by  Mr.  Davies,  of  Prince 
Edward's  Island,  a  member  of  the  Canadian  Parliament,  with 
reference  to  the  recent  course  of  Canada:  "Tile}'  were  not 
satisfied  with  putting  a  construction  upon  the  treat}-,  and  then 
carrying  out  that  construction  in  a  firm  and  reasonable  way, 
but  were  determined  that  the  custom  laws  of  this  country 
should  be  dragged  in  to  harass,  to  irritate  and  worry,  and 
drive  to  desperation  the  American  fishermen,  as  it  did  drive 
them  to  desperation."  This  programme,  though  carried  out 
with  varying  severity,  and  after  long  periods  of  intermission, 
resulted  in  the  reciprocity  treaty  of  U54.  This  triumph  of 
British  diplomacy  admitted  into  the  United  States  free  of  duty 
everything  which  Canada  had  to  sell,  and  admitted  into  Canada 
free  of  duty  only  the  articles  which  she  produced  herself.  It 
came  to  an    cn<.\,  by  notice  from  the  United  Slates,  in   [866. 

The  next  agreement — the  treaty  of  Washington — was  ne- 
gotiated  in  1S71  ;  but  the  fisheries  clauses  of  this  treat}-  were 
also  annulled  by  notice  from  the  United  States,  and  expired 
on  Jul}-  ist,  [885,  leaving  the  twenty-ninth  or  transportation 
clause  in  force. 

The  rights,  therefore,  of  the  United  States  in  the  North 
Atlantic  fisheries  at   this  date   are  to  be  measured   by  the  pro- 


24 

visions  o\  the  treaties  of  [783  and  of  1818,  and  by  the  addi- 
tional privileges  derived  under  the  concurrent  action  in  1830 
of  Great  Britain  and  the  United  States  in  annulling  their  re- 
spective non-intercourse  laws  as  to  the  British  colonies  in 
North  America, and  under  the  twenty-ninth  clause  of  the  Treaty 
o\  [871.  T1k_\-  are  not  fishery  privileges  of  one  nation  in  the 
jurisdictional  waters  of  .mother,  but  are  rights  in  the  nature 
of  a  joint  ownership,  rights  common  with  the  Canadians  and 
fully  as  great  ami  the  same  as  those  of  Canada  itself.  They 
were  vested  in  the  United  States  on  the  same  foundation  and 
at  the  same  time  as  our  independence  and  our  territorial  sov- 
ereignty, and  they  are  rights  existing  in  the  United  States 
without  any  corresponding  or  reciprocal  rights  in  British 
subjects  on  our  coast. 

The  fisheries  are  not  "  Canadian."  They  are  "  our  fisher- 
(to  use  the  expression  of  Thomas  Jefferson)  as  much  as 
those  of  Canada,  and  should  be  designated  as  the  North 
Atlantic  or  Northeastern  or  the  American  Fisheries,  and  not  by 
the  term  "Canadian  "  or  any  word  that  would  imply  an  exclu- 
sive ownership  or  sovereignty  ol  Canada  with  regard  to  them. 

T11  addition  to  the  proprietary  rights  possessed 
by  the  United  States  in  the  North  Atlantic 
fisheries,  the  fishing  vessels  of  the  United 
States,  under  the  concurrent  action  of  the  two 
countries  in  1830  and  under  the  twenty-ninth 
clause  of  the  treaty  of  1871,  are  entitled  to 
unrestricted  commercial  and  transportation 
privileges  to  the  same  extent  and  in  the  same 
manner  as  those  engaged  in  any  other  business. 

When  the  treat  of  [783  and  [818  were  signed,  foreign 
nations  were  prohibited  from  intercourse  by  sea  with  the  col- 
onies oi  Great  Britain,  and  the  rights  acknowledged  to  be- 
in  the  United  States  under  these  treaties  being  distinctively 
fishery  rights,  and  not  commercial  rights,  conferred  no  right 
in  the  United  States  to  trade  with  British  North  America. 

"The  policy  first  expressed  by  the  act  of  12  Car.,  II.  had  beeivto  pro- 
hibit foreign  nations  from  intercom   *    by  sea  with  her  colonies,  either  to 


25 

import  tnl ixport  from  them  in  theirvessels.   This  policy  was  in  U 

when  Hi.-  treat}  of  [783  was  made.  The  rights  of  the  United  States,  th 
in  acknowledged,  to  use  the  porl  ,  cre<  k  ..  and  shores  for  the  purpose  of 
its  fishery  conferred  no  right  to  trade  with  British  North  America.  In 
isi.s  the  laws  of  the  l  faked  States  also  prohibited  British  vessi  I  fr<  m  im- 
porting from  or  exporting  to  the  colonies  from  the  ports  ol  the  1  Inited 
States,  and  continued  so  to  prohibil  them  long  after  the  treaty  of  1818." 

Letter  of  ('has.   Levi  Woodbur>'  to  Senator  Morgan, 
American  Law   Rev.,  vol.  xxi,  p.  432. 

In  a  decision  under  the  treaty  in  the  vice-admiralty  court 
in  1S06  (the  "  Fame,"  Stewart's  Rep.,  95),  it  was  said  that  al- 
though American  vessels  could  supply  their  own  fishing  vessels 
with  necessaries  and  enter  an  uninhabited  port  in  the  course  ol 
such  trading,  the  Treaty  of  [783  gave  no  authority  to  trade  with 
the  shore,  so  that  the  words  "for  no  other  purpose  whatever" 
in  the  Treaty  of  1818  were  merely  declaratory  of  the  then  ex- 
isting relations  between  the  two  countries  so  far  as  the  three- 
mile  limit  was  concerned,  a  prohibition  of  all  commercial 
and  other  privileges  beyond  those  expressed. 

By  the  concurrent  action  of  Great  Britain  and  the  United 
States  in  [830  the  prohibition  of  commercial  intercourse  be- 
tween the  United  States  and  the  colonies  of  Great  Britain  was 
annulled. 

••  In  [825,  alter  several  efforts,  the  legislatures  of  the  two  governments 
began  to  open  trade,  and  the  act  of  Charles  11.  was  subsequently  re- 
pealed. In  [830  the  United  States  and  Great  Britain  dropped  their  re- 
spective non  intercourse  laws  as  to  British  North  America,  and  opened 
their  ports  to  each  other,  upon  being  satisfied  that  neither  imposed  on 
the  other's  vessels  'any  restrictions  or  discrimination's.' 

"'His  Majesty  declares,' says  Mr.  Secretary  Buller,  November  6th, 
[S30,  'that  the  ships  of  and  belonging  to  the  United  States  of  Ameri<  1 
may  import  tr-.m  the  United  States  aforesaid  into  the  British  possessions 
abroad  goods  the  produce  of  those  States,  and  may  export  goods  from 
the  British  possessions  abroad  to  be  carried  to  any  foreign  country 
whatever.' 

"General  Jackson's  proclamation,  October  5th,  [830,  says:  'British 
vessels  and  their  cargoes  are  admitted  to  an  entry  in  the  ports  oi  the 
United  States  from  the  islands,  provinces,  and  colonies  of  Great  Britain  on 

near  the  Ameri<  an  continent  and  north  or  east  of  the  United  States.' 

"  Thus  was  the  right  of  the  vessels  of  each  to  the  pri\  ileges  ol  foreign 
commerce  in  the  ports  of  the  other  established  without  any  class  restric- 
tions.    Buj  ing  .i\\i\  selling  bait,  like  the  importation  or  exportation  ol  it, 


26 

are  commercial  transactions,  and  therefore,  by  the  pledged  faith  of  the 
proclamation  of  [830  open  to  commerce  by  the  vessels  of  each  country." 

Letter    (.'has.    Levi    Woodbury,    Am.    Law   Rev.,  vol. 

xxi.  page  431. 
See  also  Niles  Register,  vol.  7,  appendix,  page   [91  ; 

appendix,  page  66. 

Bv  this  action  of  the  two  countries  commercial  privileges 

- 

were  thus  extended  in  1850  to  fishing  and  all  other  vessels  of 
the  United  States,  and  to  this  extent  the  language,  " for  no 
other  purpose  whatever,"  in  the  Treaty  of  1818,  declarator}-  of 
the  then  existing  general  prohibition  of  all  commercial  privi- 
leges between  the  two  countries,  was  modified. 

The  twenty-ninth  article  of  the  Treaty  of  Washington,  of 
1 87 1,  is  as  follows  : — 

ARTICLE  XXIX. 

"  It  is  agreed  that,  fur  the  term  of  years  mentioned  in  Article  XXXIII. 
of  this  treaty,  goods,  wares,  or  merchandise  arriving  at  the  ports  of  New 
York,  Boston,  and  Portland,  and  any  other  ports  in  the  United  States 
which  have  been  or  may  from  time  to  time  lie  specially  designated  by 
the  President  of  the  United  States,  and  destined  for  Her  Britannic 
Majesty's  possessions  in  North  America,  maybe  entered  at  tin-  proper 
custom-house  and  conveyed  in  transit,  without  the  payment  of  duties, 
through  the  territory  of  the  United  States,  under  such  rules,  regulations, 
and  conditions  for  the  protection  of  the  revenue  as  the  Government  ol 
the  United  States  may  from  time  to  time  prescribe;  and,  under  like 
rules,  regulations,  and  conditions,  goods,  wans,  or  merchandise  may 
be  conveyed  in  transit,  without  the  payment  of  duties,  from  such  pos- 
ions  through  the  territory  of  the  United  States  for  export  from  the 
said  ports  of  the  United  States. 

"It  is  further  agreed  that,  for  the  like  period,  goods,  wares,  or  mer- 
chandise arriving  a1  anj  oi  the  ports  of  Her  Britannic  Majesty's  posses- 
sions in  North  America  and  destined  for  the  United  States,  may  be 
entered  at  the  proper  <  u  itom-house  and  conveyed  in  transit,  without  the 
payment  of  duties,  through  the  said  possessions,  under  such  rules  and 
regulations  and  conditions  lor  ih'  protection  of  the  revenue  as  the  <  Gov- 
ernments ot  the  iid  possessions  may  from  time:  to  lime  prescribe  ;  and, 
under  like  rules,  regulations,  and  conditions,  goods,  wares,  or  merchan- 
dise maybe  conveyed  in  transit,  without  payment  of  duties,  from  the 
United  States  through  the  said  possessions  to  other  places  in  the  United 
States,  or  for  export  from  ports  in  the  said  possessions." 

Article  XXIX.,  treaty  of  Washington,  1871,  Wheaton's 
International   Law,  second  edition,  700. 


-7 

Thus,  by  the  action  of  the  two  countries  in  [830,  and  by 
the  twenty-ninth  section  of  the  Treaty  of  1S71,  have  the  pro- 
prietary and  ancient  rights  and  liberties  of  this  country  in  the 
North  Atlantic  fisheries  been  supplemented  by  c<  >mmercial  and 
transportation  privileges.  The  existence  of  these  privileges  is 
emphasized  by  the  fact  that  when  during  the  negotiation  oi 
the  Treaty  of  [818  a  proposition  was  made  by  the  British 
Commissioners  to  insert  a  stipulation  that  "it  shall  not  he- 
lawful  for  the  vessels  of  the  United  States  engaged  in  the  said 
fishery  to  have  on  board  any  goods,  wares,  or  merchandise 
whatever,  except  such  as  may  be  necessary  for  the  prosecu- 
tion of  the  fishery  or  support  of  fishermen,"  it  was  objected 
to  by  the  American  Commissioners  on  the  ground  that  it 
"would  expose  our  fishermen  to  endless  vexations,"  and  it 
was  withdrawn. 

These  commercial  and  transportation  privileges  have  been 
and  are  at  this  time  freely  and  fully  exercised  by  the  Canadians. 
Their  fishing  and  other  vessels  enter  and  use  our  ports,  enjoy- 
ing without  restriction  and  to  the  fullest  extent  every  privil 
claimed  by  the  fishing  vessels  of  the  United  States  under  the 
concurrent  action  of  the  two  countries  in  1830,  and  the  twenty- 
ninth  clause  of  the  Treat}-  of  Washington. 

The  "headland"  doctrine  <»f  the  Canadians,  and 
the  construction  attempted  to  be  put  upon  our 
proprietary  rights  whereby  the  American  fish- 
ermen are  denied  the  right  to  enter  bays  and 
harbors  to  purchase  coal  tor  fuel,  and  bait,  ami 
to  transship  their  catch,  are  "new  doctrines," 
ami  have  been  set  up  not  only  in  defiance  of  the 
plain  intent  of  the  treaties  and  legislation  un- 
der which  our  rights  are  recognized,  and  the 
rulings  upon  them,  but  as  after-thoughts,  and 
contrary  to  the  views  of  the  British  Govern- 
ment. 

Considering  the  origin  and  nature  of  the  rights  of  the 
United  States  in  the  North  Atlantic  fisheries,  the  relative  sit- 
uation of  the  two  countries  and  the  close  commercial  relations 


28 

existing  between  them,  and  construing  the  Treaty  of  1 8 1 8  as 
one  of"  friendship  and  not  o(  hostility,"  and  according  to  the 
customary  rules  applicable  to  instruments  of  this  character, 
the  rights  of  the  United  States  and  of  its    fishing  vessels   in 

the  North  Atlantic  fisheries  and  their  privileges  in  Canadian 
ports  would  seem  to  be  clear  under  the  treaty  stipulations  and 
the  concurrent  legislation  of  the  two  countries. 

The  liberty  of  American  vessels  to  fish  within  three  miles 
of  certain  parts  of  the  shore  was  practically  the  only  privilege 
which  under  the  Treat)-  of  1818  was  renounced  by  the  United 
States,  and,  with  this  restriction  only,  the  fishery  rights  of  the 
United  States  are  the  same  as  those  of  Canada  itself. 

The  buying  of  bait  and  supplies  by  fishing  or  any  other 
vessels  of  the  United  States  in  Canadian  ports  is  a  commer- 
cial privilege  to  which  they  are  entitled  under  the  action  of 
the  two  countries  in  1 830  ;  and  the  right  of  American  fishing 
vessels  to  transship  their  catch  from  Canadian  ports  to  points 
in  the  United  States  is  secured  to  them  by  the  twenty- 
ninth   clause  of  the  Treat}-  of   1S71. 

Canada,  however,  now  insists  that  the  fishing  vessels  of 
the  United  States  have  no  right  to  enter  any  bays  of  Canada, 
no  matter  how  wide,  and  have  no  right  to  buy  bait  and  sup- 
plies or  transship  their  catch  from  Canadian  ports  to  points  in 
the  United  States  ;  and  has  endeavored  so  to  harass  and  annoy 
our  fishing  vessels  in  the  exercise  of  rights  which  it  admits 
them  to  possess  as  to  make  these  rights,  for  the  present, 
worthless.  The  position  assumed  is  that  the  fishery  rights 
of  the  United  States  are  nothing  more  than  the  ordinary 
rights  of  fishing  which  are  permitted  to  citizens  of  another 
ereignty  by  a  country  having  the  exclusive  territorial 
jurisdiction  over  them,  and  the  proprietary  rights  of  the 
United   States  in   them   are   ignored. 

Wheaton,  in  describing  the  right  of  fishing  of  one  nation 
in  the  jurisdictional  waters  of  another,  says: — 

"The  right  of  fishing  in  the  waters  adjacent  to  the  coasts 
of  any  nation,  within  its  territorial  limits,  belongs  exclusively 
to  the  subjects  of  the  State.  The  exercise  of  this  right  be- 
tween France  and  Great  Britain   was  regulated  by  a  convert- 


tion  concluded  between  these  two  powers,  in  [839;  by  the 
ninth  article  of  which  it  is  provided,  that  French  subjects 
shall  enjoy  the  exclusive  right  of  fishing  along  the  whi 
extent  of  the  coasts  of  France,  within  the  distance  ol  three 
geographical  miles  from  the  shore  at  low-water  mark-,  and 
that  British  subjects  shall  enjoy  the  same  exclusive  right  alo 
the  wlmle  extent  of  the  coasts  of  the  British  Islands,  within 
the  same  distance;  it  being  understood,  that  upon  that  part 
of  the  coasts  of  France  lying  between  Cape  Carteret  and  the 
point  of  Monga,  the  exclusive  right  of  French  subjects  shall 
only  extend  to  the  fishery  within  the  limits  mentioned  in  the 
fust  article  of  the  convention;  it  being  also  understood,  that 
the  distance  of  three  miles,  limiting  the  exclusive  right  oi 
fishing  upon  the  coasts  of  the  two  countries,  shall  be  meas- 
ured, in  respect  to  bays  of  which  the  opining  shall  not  exceed 
ten  miles,  by  a  straight  line  drawn  from  one  cape  to  the  other." 
Section  180,  Wheaton's  International  Law.  (Boyd's ed.), 
page  241. 

A  privilege  of  this  kind  is  very  different  in  its  character 
from  the  proprietary  rights  possessed  by  the  United  States  in 
the  North  Atlantic  fisheries. 

Consequent  upon  the  three-mile  limit  from  the  shore,  pro- 
vided under  the  treaty  of  [818,  the  United  States  has  never 
since  claimed  the  right  to  fish  within  bays  whose  headlands 
were  less  than  six  miles  apart.  But  Canada  asserts  that  the 
fishine  vessels  of  the  United  States  have  no  right  to  fish  in 
anv  <»f  its  bays,  no  matter  how  wide  between  the  headlands, 
a  claim  which  was  not  set  up  until  some  twenty  years  after 
the  treaty  of   [818  had  been  concluded. 

The  position  now  assumed  by  Canada  took  no  definite  shape 
until  some  time  after  the  year  1S41,  when  the  opinion  of  the 
law  officers  of  the  Crown  in  England  was  given  on  certain 
questions  submitted  by  the  Nova  Scotia  Government,  which 
set  forth  and  were  based  on  the  fundamental  error  that  the 
United  States  had  obtained  the  "  right  to  take  fish  on  the 
Grand  Banks,"  &c,  at  the  peace  and  under  the  Treaty  of  1 
This  error  in  the  questions  submitted  was  only  equaled  by  the 


3° 

recklessness  of  the  opinion  that  held  unqualifiedly  "that  the 
Treaty  of  1783  was  annulled  by  the  War  of  18 12,"  and  that 
"  n^  right  exists  on  the  part  of  American  citizens  to  enter  the 
bays  "t"  Nova  Scotia  there  to  take  fish,  although  the  fishing 
being  within  the  bay  may  be  at  a  greater  distance  than  three 
miles  from  the  shore  of  the  bay,  as  we  are  of  the  opinion  that 
the  term  headland  is  used  in  the  treaty  to  express  that  part  of 
the  land  we  have  before  mentioned,  excluding  the  interior  of 
oay>. 

Sabine's  Report  on  the  Fisheries,  pages  405,  472  ; 

Speech  of  Hon.  Lewis  Cass,  U.  S.  Senate,  Aug.  3,  1852, 
Appendix  Cong.  Globe,  vol.  25,  page  896. 

As  has  already  been  shown,  the  British  Government  had 
not,  in  the  negotiations  of  the  Treaty  of  i8i8,claimed  that  the 
Treaty  of  1783  was  entirely  abrogated  by  the  War  of  18 12. 
By  the  language  of  the  Treaty  of  181 8  they  were  and  are 
estopped  from  asserting  that  the  fishery  liberties  -reserved  by 
the  Treaty  of  1783  were  annulled.  The  argument  of  the 
American  Commissioners,  in  the  negotiations  of  the  Treaty  of 
Ghent  and  the  Treaty  of  1818,  was  conclusive  that  the  War 
of  1812  had  not  deprived  us  of  our  fishery  rights  and  liber- 
ties under  the  Treaty  of  1783.  The  rule,  as  stated  by  writers 
on  international  law,  was  and  is  substantially  that  treaties  stip- 
ulating for  a  permanent  arrangement  of  territorial  and  other 
national  rights  are  not  annulled  by  war. 

Wharton's    International   Dig.,  ii.,  chapter  vi.,  section- 

135- 

The  Supreme  Court  of  the  United  States  (8  Wheaton,  464, 

1823),  held  that— 

"  Where  treaties  contemplate  a  permanent  arrangement  of  territorial 
and  other  national  rights,  or  which  in  their  terms  are  meant  to  provide 
for  the  event  of  an  intervening  war,  it  would  be  against  every  principle 
of  just  interpretation  to  hold  them  extinguished  by  the  event  of  war.  If 
su<  li  were  the  law  even  the  Treaty  of  1783,  so  far  as  it  fixed  our  limits 
and  acknowledged  our  independence,  would  be  gone,  and  we  should 
have  had  again  to  struggle  for  both  upon  original  revolutionary  princi- 
ple. Such  a  construction  was  never  asserted  and  would  be  so  mon- 
strous as  to  supersede  all  reasoning." 


3i 

In  the  case  of  Sutton  vs.  Sutton,  i  Rus.  &  .M.,  675,  [830,  it 
was  held  by  Sir  J.  Leach,  Master  of  the  Rolls,  that  territorial 
rights  given  under  the  Treaty  of  1794  between  Great  Britain 
and  the  United  States,  were  permanent  in  their  character,  and 
were  not  abrogated  by  the  War  of  1812.  This  case;  the  de- 
bate in  Parliament  relating  to  the  Treat}-  of  Amiens,  in  1802 
(Hansard's  Deb.,  vol.  xxiii.,  page  1147);  ant'  tnc  opinions -of 
Sir  James  Marriot,  in  1765,  and  of  Attorney-General  Ryder 
and  Solicitor-General  Murray-,  in  1753,  to  the  effect  that  the 
fishery  clause  in  the  Treaty  of  November  16th,  1686,  between 
England  and  France,  was  not  annulled  by  war  (Opinions  of 
Eminent  Lawyers,  &c,  Geo.  Chalmers,  vol.  ii.,  pages  344,  355, 
1 8 14),  must  be  presumed  to  have  been  known  to  the  law  offi- 
cers of  Crown  in  1841. 

The  disregard  of  these  precedents  and  the  statement  in  the 
opinion  that  '"the  term  headland  is  used  in  the  treat},"  when 
that  word  is  not  found  anywhere  in  it,  do  not  render  the 
opinion  creditable  to  the  accuracy  or  professional  reputation 
of  the  gentlemen  who  gave  it. 

The  Hon.  Hannibal  Hamlin,  in  1852,  referring  to  the 
Treaty  of  18 18,  and  the  new  doctrine  set  up  by  Canada  under 
the  opinion  referred  to,  said  : — 

"The  only  tiling  claimed  through  all  the  negotiations  was  that  we 
should  be  excluded  from  coming  within  three  miles  of  the  shore, 
not  bays  that  were  leagues  in  extent.  Had  such  been  the  intention  ot 
any  party  to  the  treaty,  we  should  find  somewhere  such  a  claim. 
None  such  was  made.  Had  there  been,  it  would  have  been  promptly 
denied.  That  clause  which  says,  'that  the  I'nited  States  hereby  re- 
nounce, forever,  any  liberty  heretofore  enjoyed  or  claimed  by  the  in- 
habitants thereof,  to  take,  dry,  or  cure  fish  on  or  within  three  marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors,  &c.,'  is  to  exclude 
us  from  the  great  bays  and  gulfs.  Was  such  the  intention  of  Great  Brit- 
ain ?  She  never  made  any  such  pretensions  during  all  the  negotiations, 
and  when  we  renounced  our  right  to  the  shore  fisheries,  as  we  did  in  the 
treaty,  and  of  taking  tisli  within  three  marine  miles  of  the  coasts,  bays, 
creeks,  and  harbors,  that  language  became  necessary  to  exclude  us  from 
the  small  bays,  creeks,  and  harbors  within  three  miles  of  the  shore — 
within  the  jurisdiction  of  (beat  Britain,  and  which  we  had  formerly  en- 
joyed claimed  as  a  right,  'that  such  was  the  intention  of  the  parties 
must  be  interred  from  the  facts  to  which  I  have  alluded,  which  took  place 
during  the  negotiations. 


3^ 


••  But  the  last  clause  of  the  article  contained  in  the  proviso  at  the  end, 
will  explain  what  bays,  creeks,  and  //ardors  were  surrendered  up  by  our 
Government.     The  article  says:— 

•• '  American  fishermen  shall  be  admitted  to  enter  such  bays  and  harbors 
for  tin- purpose  of  shelter,  and  for  repairing  damages  Unrein,  purchas- 
ing wood,  and  obtaining  water.' 

"The  bays  and  harbots  which  are  surrendered  up  by  the  Americans 
are  the  bays  and  harbors  into  which  the  American  fishermen  may  go  to 
find  a  shelter,  repair  damages,  purchase  zvood,  and  obtain  water.  All 
these  things  could  only  be  done  in  the  small  harbors,  which  would  afford 
shelter,  and  where  damage  could  be  repaired.  But  to  allow  fishermen 
to  go  into  the  Gulf  of  St.  Lawrence  or  the  Bay  of  Fundy  for  repair  or 
shelter!  They  might  with  far  greater  propriety  seek  the  open  sea  for 
shelter,  tor  with  sufficient  sea-room  they  might  be  safe,  while  in  such 
bays  as  the  Bay  of  Fundy  they  would  be  sure  of  destruction  upon  a  lee 
shore.  Better,  far  better,  to  seek  the  broad  and  trackless  ocean  for  a 
shelter,  to  repair  for  wood  or  water.  The  very  uses  to  which  these  bays 
and  harbors  art-  to  be  appropriated  must  show  what  was  intended— such 
harbors  and  bays  as  could  be  used  for  the  purposes  named.  The  same 
interpretation  of  the  word  bay  in  the  treaty,  when  applied  to  Fundy, 
Chaleur,  or  St.  Lawrence,  should  lie  understood  as  when  applied  to  the 
Bay  of  Biscay  or  the  Gulf  of  .Mexico. 

"Another  view  of  this  question  will,  it  is  believed,  furnish  us  with  what 
is  the  true  construction  of  the  treaty,  by  which  we  are  restricted  in  certain 
bays,  creeks,  and  harbors  therein  named.  What  were  the  rights  enjoyed 
by  our  fishermen  under  the  Treaty  of  1783.?  They  bad  the  right  and  did 
use  what  is  known  as  the  shore  fisheries  inside  of  three  miles  from  the 
shore,  and  in  the  bays,  creeks,  and  harbors,  with  which  the  whole  coast 
was  indented.  These  were  what  we  occupied,  and  for  many  purposes 
they  were  very  valuable.  To  them  were  claimed  a  right,  and  these  were 
the  privileges  which  we  renounced.  A  line  drawn  from  indentation  to 
indentation  along  the-  coast,  as  has  always  been  contended  for  by  our 
Government,  would  exclude  us  from  the  shore  fisheries,  which  were  and 
are  so  called  in  distinction  from  the  sea  fisheries  more  than  three  miles 
fn  'in  the  shore. 

"  Besides,  tin-  intention  ol  our  ministers  who  negotiated  the  treaty,  and 
tin-  evidence  whi<  h  the  protocols  furnish  as  the  negotiations  progressed, 
all  concur  to  aid  us  in  our  construction.  These  protocols  and  this  evi- 
dence of  that  time  are  of  great  importance,  and  cannot  fail  to  carry  con- 
viction along  with  them  as  to  what  was  intended  by  the  language  used 
in  the  treaty  and  tin-  reasons  for  which  it  was  placid  there." 

Appendix  in  the  Congressional  ( rlobe,  vol.  25,  page  900, 
August,  1852, Thirty-second  Congress,  First  Session. 

In    his    letter  of  July    18th,    1853,  to   Secretary   of    State 
Marcy,  Richard  Rush,  who  was  one  of  the  commissioners  on 


the  pari  of  the   United   States  in  making  the  treaty  of  iXiK, 
thus  refers  to  the  pretensions  of  Canada  : — 

"  In  signing  it.  we  believed  that  we  retained  the  right  of  fishing  in  the 
sea,  whether  called  a  bay,  gulf,  or  by  whatever  othei  term  designati  d, 
thai  washed  any  part  of  the  coast  ol  the  British  North  American  prov- 
inces, with  the  simple  exception  that  we  did  not  come  within  a  marine 
league  <>f  the  shore.     We  had  this  right  by  the  law  of  nations. 

"  In  confirmation  was  in  the  Treaty  of  [783.  We  retained  it  undimin- 
ished, unless  we  gave  it  up  by  the  first  article  of  the  convention  of  r8i8. 
This  we  did  not  do.  The  article  warrants  no  such  construction.  .Mr. 
Everett,  when  minister  in  London,  writing  to  Lord  Aberdeen,  August 
10th,  [843,  under  instructions  from  the  Secretary  ol  State,  remarks  that 
'the  right  of  fishing  on  any  part  of  the  coast  of  Nova  Scotia  (conse- 
quently in  the  Bay  of  Fundy)  at  a  greater  distance  than  three  miles  is  so 
plain  thai  it  would  be  difficult  to  conceive  on  what  ground  it  could  be 
drawn  in  question  had  not  attempts  been  made  by  the  provincial  author- 
ities ol'  Her  Majesty's  Government  to  interfere  with  its  exercise;'  and 
Mr.  Stevenson,  minister  in  London  before  Mr.  Everett,  while  writing  to 
Lord  Palmerston,  March  27th,  [841,  in  reference  to  our  right  to  fish  in 
the  large  outer  hays,  says  'the  stipulations  of  the  Treaty  (convention)  of 
i.sin  .ne  believed  to  be  too  plain  and  explicit  to  leave  room  tor  doubt  or 
misapprehension.' 

"As  to  the  Hay  of  Fundy,  part  of  its  coast  belongs  to  one  of  the  States 
of  the  Union,  namely,  Maine.  I  [ence  Britain  cannot  claim  it  as  her  exclusive 
dominion.  Had  Mr.  Gallatin  been  told  by  the  British  plenipotentiaries 
that  the  first  article  of  the  convention  would  close  the  extensive  waters 
of  that  bay  against  our  fishermen,  I  do  not  believe  he  would  have  signed 
it.  I  am  sure  I  would  not  have  signed  it.  The  spirit,  context,  all  the 
concomitants  of  the  article,  pointed  to  a  different  meaning.  I  need  not 
cite  all  its  words.  You  are  familiar  with  them.  It  will  be  enough  to 
bring  into  view  the  proviso  which  follows  the  clause  of  renunciation. 
That  part  runs  thus  : — 

"And  the  United  Stat.-,  hereby  renounce  forever  any  liberty  hereto- 
fore enjoyed  or  claimed  by  the  inhabitants  thereof,  to  take,  dry,  or  cure 
fish  on  or  within  three  marine  miles  of  any  of  the  coasts,  bays,  creeks, 
or  harbors  of  His  Britannic  Majesty's  dominions  in  America  ni  't  included 
within  the  above-mentioned  limits  (those  set  out  for  us  in  the  beginning 
of  the  article)  :  Provided,  however,  Thai  the  American  fishermen  shall 
be  permitted  to  enter  such  bays  or  harbors  for  the  purpose  of  shelter  ami 
ot  repairing  damages  therein,  of  purchasing  wood,  and  of  obtaining  water, 
and  for  no  other  purpose  whatever." 

'These  are  the  decisive  words  in  our  favor.  They  meant  no  more 
than  that  our  fishermen,  whilst  fishing  in  the  waters  of  the  Lav  of  Fundy, 
should  not  go  nearer  than  three  miles  to  an)  of  those  smaller  inner 
bays,  creeks,  or  harbors  which  are  known  to  indent  the  coast  of  Nova 
Scotia  and  New  Brunswick.  ■ 


34 

"To  suppose  they  were  bound  to  keep  three  miles  oil  from  a  line 
drawn  from  headland  to  headland  on  the  extreme  outside  limits  of  that 
haw  a  line  which  might  measure  fifty  miles  or  more,  according  to  the 
manner  of  drawing  or  imagining  it,  would  be  a  most  unnatural  suppo- 
sition. I  cannot  think  that  it  entered  the  minds  of  the  British  plenipo- 
tentiaries any  more  than  ours.  For  would  it  not  be  useless  to  tell  fish- 
ermen, when  half  wrecked,  that  they  might  cross  such  a  line  for  the  pur- 
pose of  seeking  shelter  in  hays,  creeks,  and  harbors,  lying  at  an  immense 
distance  inside  of  it?  Tempest-tossed  outside  of  a  great  sea-line  like 
that,  damaged  in  sails  and  rigging,  how  were  they  to  reach  the  shelter- 
ing havens  they  desired?  To  suppose  it  is  a  mockery;  and  similar 
reasoning  applies  to  all  the  other  large  hays  and  gulfs. 

"We  inserted  the  clause  of  renunciation.  The  British  plenipoten- 
tiaries did  not  desire  it.  Without  it  room  might  have  been  left  for  the 
inference  that  what  we  got  under  the  convention  was  a  grant  from 
Britain;  whereas,  our  ground  of  argument  being  that,  with  the  excep- 
tion of  shore  privilege,  our  fishing  rights  remained  as  under  the  Treaty 
of  1783,  we  could  receive  nothing  which  had  been  agreed  upon  by  the 
first  article  in  the  light  of  a  concession  or  favor  from  her.  We  took  it 
only  as  part  of  a  coequal  agreement  and  in  the  sense  of  a  compromise. 

"  In  conformity  with  our  construction  was  the  practice  of  Britain  her- 
self after  the  convention  was  ratified.  Our  fishermen  were  waiting  for 
the  word  not  of  exclusion,  but  admission,  to  those  large  outer  bays. 
They  had  been  shut  out  from  them,  some  captured,  and  all  warned  away 
after  tin-  Treaty  of  Ghent.  The  interval  was  an  anxious  one  to  them. 
Accordingly,  as  soon  as  the  convention  went  into  operation,  they 
erly  hastened  to  their  ancient  resorts,  reinstated  by  the  provident 
care  of  their  Government.  Hence  the  significant  motto  of  our  Revo- 
lutionary patriot  and  sage,  that  we  would  both  fish  and  hunt  over  the 
same  grounds  as  heretofore.  No  complaint  was  made  or  whispered  by 
any  member  of  the  British  Government  of  that  day  of  which  I  ever. 
heard. 

"  I  remained  minister  at  tiie  court  nearly  seven  years  after  the  signa- 
ture and  ratification  of  this  convention.  Opportunities  of  complaint 
were  therefore  never  wanting.  If  intimated  to  me  it  would  have  been 
my  duty  to  transmit  at  once  any  such  intimation  to  our  Government. 
Nor  did  I  eVe|-  hear  of  complaints  through  their  legation  in  Washington. 
It  would  have  been  natural  to  make  objection  when  our  misconstruction 
of  the  instrument  was  fresh,  if  we  did  misconstrue  it.  The  occasion 
would  have  be<  iportune  when  I  was  subsequently  engaged 

in  extensive  negotiations  with  England  in  1823-24,  which  brought  under 
ration  the  whole  relations,  commercial  and  territorial,  between 
the  two  countries,  including  our  entire  intercourse  by  sea  and  land  with 
her  North  American  colonies.  Still,  silence  was  never  broken  in  the 
metropolitan  atmosph  London  whilst  I  remained  there. 

"  Your  letter  informs  me  that  for  more  than  twenty  years  after  the  con- 
vention  there  was   no  serious   attempt  to  exclude  us  from  those  large 


35 

bays,  and  Mr.  Everett,  writing  as  Secretary  of  State,  only  on  the  4th  of 

tnber  last,  to  Mr.  [ngersoll,  then  our  minister  in  London,  rend 
more  definite  the  time  you  would  indicate,  by  saying  that  '  it  was  just  a 
quarter  ol  a  century  after  the  date  of  the  convention  before  the  first 
American  fisherman  was  captured  for  fishing  at  large  in  Bay  of  Fundy.' 
I  find  it  extremely  difficult,  under  any  lights  al  present  before  me,  to  explain 
the  extraordinary  circumstances  which  environ  this  international  qi 
tion  consistently  with  the  respect  due  to  the  high  party  on  the  other  side  ; 
feelings  the  most  friendly  being  ever  due  toherfromthe  magnitudi 
the  interests  bound  up  in  the  subsistence  of  harmonious  relations  be- 
tween the  two  countries." 

The  claim  of  Canada  was  pronounced  a  "  new  doctrine"  by 
Mr.  Bates, the  umpire  in  the  case  of  the  "  Washington  "  in  [853, 
who  decided  that  the  seizure  of  an  American  vessel  while 
fishing  in  the  Bay  of  Fundy  was  illegal,  and  this  doctrine  was 
again  repudiated  by  the  umpire  in  the  case  of  the  "Argus," 
seized  for  fishing  on  Saint  Ann's  Hank  within  headlands. 

These  cases  are  thus  referred  to  in  Wharton's  International 
Law  Digest,  section  305a,  vol.  3,  page  59: — 

"  A  construction  of  the  terms  '  coasts,  bays,  creeks,  or  har- 
bors,' in  the  treaty  of  [818,  was  given  by  the  mixed  commis- 
sion under  the  convention  of  1853,  in  the  case  of  the  United 
States  fishing  schooner  '  Washington,' which  was  seized  while 
fishing  in  the  Bay  of  Fundy,  ten  miles  from  shore,  taken  to 
Yarmouth,  Nova  Scotia,  and  adjudged  forfeited  on  the  charge 
of  violating  the  treaty  of  18 18  by  fishing  in  waters  in  which 
the  United  States  had,  by  that  convention,  renounced  the 
right  of  its  citizens  to  take  fish.  A  claim  of  the  owners  of 
the  'Washington'  for  compensation  came  before  the  coin- 
mission  above  mentioned,  and  the  commissioners  differing, 
the  case  was  referred  to  Mr.  Joshua  Bates,  the  umpire,  who, 
referring  to  the  theory  that  '  haws  and  coasts'  were  to  he  de- 
fined by  'an  imaginary  line  drawn  alone,  the  coast  from  head- 
land to  headland,  and  that  the  jurisdiction  of  Her  Majesty 
extends  three  marine  miles  outside  of  this  line,  thus  closing 
all  the  bays  on  the  coast  or  shore,  and  that  great  body  of  water 
called  the  Bay  of  Fundy,'  pronounced  it  a  '  new  doctrine,' 
and,  repudiating  the  decision  of  the  provincial  court  based 
thereon,  awarded  the  owners  of  the  vessel  compensation  for 


36 

an  illegal  condemnation.  The  umpire  also  decided  that  as 
the  Bay  of  Fundy  is  from  sixty-five  to  seventy-five  miles  wide 
and  from  one  hundred  and  thirty  to  one  hundred  and  forty 
miles  long,  with  several  '  bays'  on  its  coasts,  and  has  one  of 
its  headlands  in  the  United  States,  and  must  be  traversed  for 
a  long  distance  by  vessels  bound  to  Passamaquoddy  Bay,  and 
contain-  one  United  States  island,  Little  Menan,  on  the  line 
between  headlands,  the  Bay  of  Fundy  could  not  be  considered 
as  an  exclusively  British  bay.  (See  President's  message  com- 
municating proceedings  of  commission  to  Senate;  also  Dana's 
Wheaton,  section  274,  note  142.)  The  '  headland  '  theory  was 
again  rejected  by  the  umpire  in  the  case  of  the  schooner 
'Argus,'  which  was  seized  while  fishing  on  Saint  Ann's  Bank, 
twenty-eight  miles  from  Cape  Smoke,  the  nearest  land,  taken 
to  Sydney,  and  sold  for  violation  of  the  treaty  of  1818  by  fish- 
ing within  headlands.  The  owners  were  awarded  full  com- 
pensation. 

"  Mr.  Dana,  in  this  connection,  quotes  (Dana's  Wheat.,  sec. 
274,  note,  142)  from  the  treaty  between  Great  Britain  and 
France  of  1839  the  following  provisions:  'It  is  agreed  that 
the  distance  of  three  miles,  fixed  as  the  general  limit  of  the 
exclusive  right  of  fishing  upon  the  coasts  of  the  two  coun- 
tries, shall,  with  respect  to  bays  the  mouths  of  which  do  not 
exceed  ten  miles  in  width,  be  measured  from  a  straight  line 
drawn  from  headland  to  headland.' 

"  As  to  the  British  concession  that  the  Bay  of  Fundy  is  an 
open  sea,  see  papers  connected  with  message  of  President 
Fillmore,  February  28th,  1853,  with  Senate  Confid.  Doc.  No.  4, 
special  session  1853,  and  see  particularly  Mr.  Everett,  Sec.  of 
State,  to  Mr.  Ingersoll,  Dec.  4th,  1852,  MSS.  Inst.  Gr.  Brit., 
appended  to  message  aforesaid. 

"A-  to  detention  of  fishermen  in  the  Bay  of  Fundy,  see 
President  Monroe's  message  of  Feb.  26th,  1825,  House  Doc. 
No.  408,  1 8th  Cong.,  second  sess.,  5  Am.  St.  Pap.  (For  Rel.),  735. 

"Mr.  Rush's  not'-s  of  negotiation,  Monroe  papers,  Dept.  of 
State." 

The  British  Government  has  not  supported  the  Canadian 
authorities  in  their  claim,  and  practically  yielded  the  claim  in 


57 

favor  of  the  United  States.  No  better  account  of  the  course  of 
the  British  Government  on  this  question  can  be  given  than 
that  by  Mr.  Phelps,  in  his  letter  of  June  2d,  [886,  to  Lord 
Rosebury,  of  June  2d,  [886.  Senate  Ex.  Doc.  No.  i  13,  50th 
( longress,  first  sess.,  p.  413. 

••(Mi  the  26th  of  May,  [870,  Mr.  Thornton,  the  British  minister  at 
Washington,  communicated  officially  to  the  Secretary  ol  State  of  the 
United  States  copies  of  the  orders  addressed  by  the  British  Admiralty  to 
Admiral  Wellesley  commanding  Her  Majesty's  naval  forces  on  the 
North  American  station,  and  of  a  letter  from  the  colonial  department  to 
the  Foreign  <  >ffice,  in  order  that  the  secretary  mighl  'see  the  nature  ol 
the  instructions  to  be  given  to  Her  Majesty's  and  the  Canadian  officers 
employed  in  maintaining  order  atthe  fisheries  in  the  neighborhood  ol 
the  coasts  of  Canada.1  Anion-  the  documents  thus  transmitted  is  a  let- 
ter from  the  Foreign  (  iffice  to  the  Secretary  of  the  Admiralty,  in  which 
the  following  language  is  contained  : — 

" 'The  Canadian  Government  has  recently  determined,  with  the  con- 
current e  of  Her  Majesty's  minister,  to  in<  rease  the  stringency  of  the 
isting  practice  of  dispensing  with  the  warnings  hitherto  given  and  seizing 
.1!  1  mi  e  any  vessel  detected  in  violating  the  law. 

"  •  In  view  of  this  change  and  of  the  questions  to  which  it  may  give 
rise,  I  am  directed  by  Lord  Granville  to  request  that  you  will  move  their 
lordships  to  instruct  the  officers  of  llcr  Majesty's  ships  employed  in  the 
protection  of  the  fisheries  that  they  are  not  to  seize  any  vessel  unless  it 
is  evident  and  can  be  clearly  proved  that  the  offense  ol  fishing  has  been 
committed  and  the  vessel  itself  captured  within  three  miles  ol  land.'  ' 

In  the  letter  from  the  lords  of  the  Admiralty  to  Vice- 
Admiral  Wellesley  of  May  5th,  1870.  in  accordance  with  the 
foregoing  request,  and  transmitting  the  letter  above  quoted 
front,  there  occurs  the  following  Ian  : — 

"My  lords  desire  me  to  remind  yon  of  the  extreme  importance  ol 
commanding  officers  of  the  ships  selected  to  protect  the  hsh.ri 

ng  the  utmost  discretion  in  carrying  out  their  instructions,   paying 
special  attention  to  Lord  Granville's  observation  that  no  vessel  should 
be  seized  unless  it  is  evidenl  and  can  be  clearly  proved  that  the  offensi 
of  fishing  has  been  committed  ami  that  the  vessel  is   captured  within 
three  miles  ^(  land." 

Lord   Granville,  in   transmitting   to  Sir  John  Young  these 

instructions,  makes  use  of  the  following  language:  — 

"Her  Majesty's  Government  do  not  doubt  that  your  ministers  will 
agree  with  them  as  to  the  proprietj  of  these  instructions,  and  will  give 
corresponding  instructions  to  the  vessels  employed  by  them." 


These  instructions  were  again  officially  stated  by  the  Brit- 
ish minister  at  Washington  to  the  Secretary  of  State  of  the 
United  States  in  a  letter  dated  June  I  Ith,  1870. 

Again,  in  February,  1871,  Lord  Kimberlv,  Colonial  Secre- 
tary, wrote  to  the  Governor-General   of  Canada  as  follows: — 

"The  exclusion  of  American  fishermen  from  resorting  to  Canadian 
ports,  except  for  the  purpose  of  shelter  and  of  repairing  damages  therein, 
purchasing  wood,  and  of  obtaining  water,  might  be  warranted  by  the 
letter  of  the  Treaty  of  r8i8  and  by  the  terms  of  the  imperial  act  59 
George  III.,  chapter  38,  but  Her  Majesty's  Government  feel  bound  to 
state  that  it  seems  to  them  an  extreme  measure,  inconsistent  with  the 
general  policj  of  the  empire,  and  they  are  disposed  to  concede  this 
point  to  the  United  States  Government  under  such  restrictions  as  may 
be  necessary  to  prevent  smuggling,  and  to  guard  against  any  substantial 
invasion  of  the  exclusive  rights  of  fishing  which  may  be  reserved  to 
British  subjects." 

During  Sir  Charles  Tapper's  speech  in  the  House  of  Com- 
mons of  Canada,  April  loth,  1888,  the  following  colloquy 
took  place  regarding  the  position  taken  by  the  British  Gov- 
ernment : — 

"Sir  Charles  Tupper.— Here  is  a  dispatch  from  Downing  street, 
elated  6th  June,  1870  : — 

" 'Her  Majesty's  Government  are  fully  aware  that  no  step  should  be 
taken  which  should  prejudge  the  question.' 

"  I  want  to  draw  the  attention  of  the  House  to  the  fact  that  this  was 
not  a  settled  or  concluded  question — that  it  was  not  a  question  upon 
which  the  Governments  of  Great  Britain  and  the  United  States  had 
agreed  or  on  which  they  had  arrived  at  a  common  interpretation  ;  and  I 
want  to  draw  my  honorable  friend's  attention  to  the  doubt  that  Her  Ma- 
jesty's Government  had  upon  the  subject.     What  do  they  say? 

"  '  Her  Majesty's  Government  are  fully  aware  that  no  steps  should  be 
n  whii  li  would  prejudge  the  question— what  are  Canadian  waters? 
hould  admit  the  right  of  the  United  States  fishermen  to  fish  within 
e  waters  except  within  the  limits  prescribed  by  the  Convention  of 

'"But  they  do  not  abandon  the  hope  that  the  question  of  abstract 
right  may  yel  be  avoided  by  some  arrangement  between  Canada  and 
the  United  States,  or  that  the  limits  may  be  definitely  settled  by  arbitra- 
tion or  otherwise;  and  while  any  expectation  of  this  kind  exists,  they 
ire  to  avoid  all  occasions  of  dispute,  so  far  as  this  is  possible,  consist- 
ently with  the  substantial  protection  of  the  Canadian  fisheries.  With 
those  objects,  they  think  it  advisable  that  I  Fnited  States  fisherman  should 
not  be  excluded  from  any  waters  except  within  three  miles  from  the 
shore,   or  in   tin-  unusual  case  of  a  bay  which  is  less  than  six  miles  wide 


39 

at  its  mouth  but  spreads  to  a  greater  width  within.     It  will,  of  i  oursi 
understood  and  explained  to  the  1  fnited  States  Government  that  this  lib- 
erty is  conceded  temporarily  and  wit  In  mi  prejudice  to  the  i  ighl  of  <  ireat 
Britain  to  fall  back  on  her  treaty  rights,  if  the  prospect  ol  an  arran 
ment  lessens,  orifthe  concession  is  found  to  interf  tically  with 

the  protection  of  the  Canadian  fisheries.' 

"  That  was  also  a  dispatch  from  Lord  <  iranville,  June  6th,  t87b.  Now, 
under  the  pressure  of  this,  as  my  honorable  friend  lias  stated,  he 
changed  his  instructions  in  reference  to  the  ten  miles,  and  put  in  six 
miles,  and  forbade  his  officers  to  interfere  with  the  American  fishermen, 
not  as  in  the  first  instructions  he  gave,  if  they  were  within  three  mill 
the  mouth  of  the  bay,  but  only  if  they  were  within  three  miles  of  the 
shore,  and  he  says :  — 

'•'Until  further  instructed,  therefore,  you  will  not  interfere  with  any 
American  fishermen  unless  found  within  three  miles  of  the  shore  or 
within  three  miles  of  a  line  drawn  across  the  mouth  of  a  hay  or  creek, 
which,  though  in  parts  more  than  six  miles  wide,  is  less  than  six  geo- 
graphical miles  in  width  at  its  mouth.  In  the  case  of  any  other  bay,  as 
Baie  des  Chaleurs,  for  example    *    * 

"  The  very  hay  he  excluded  them  from  was  more  than  ten  miles  wide. 

"  ' you  will  not  interfere  with  any  United  States  fishing  vessel  or 

boat  or  any  American  fishermen,  unless  they  are  found  within  three  miles 
of  the  shore.' 

••  Mr.  Mitchell.— Under  positive  instructions  from  England,  against 

my  representations  and  everything  else. 

"Sir  Charles  Ti  pper. — 1  think  I  have  satisfied  my  honorable  friend 
that  as  far  as  Her  Majesty's  Government  were  concerned,  while  they 
maintained  the  abstract  right  under  the  treaty,  they  were  unwilling  to 

raise  the  question  of  hays,  and  the  result  is,  as  my  honorable  friend 
knows,  that  for  the  last  thirty-four  years,  certainly  since  1N54  -and  1  will 
not  go  further  back  than  [854  there  has  been  no  practical  interference 
with  American  fishing  vessels  unless  they  were  within  three  miles  of  the 
shore,  in  hays  or  elsewhere." 

When  it  is  remembered  that  our  treaty  relations  are  with 
the  British  Government  and  not  with  Canada,  that  the  re- 
sponsibility <>f  determining  what  is  the  true  construction  ol  a 
treaty  made  by  Her  Majesty  with  any  foreign  power  must  re- 
main with  Her  Majesty's  Government,  that  Canada's  claim  to 
construe  a  treaty  negotiated  with  the  United  States  is  admit- 
ted  neither  by  the  United  States  nor  by  Great  Britain,  it  must 
be  conceded  that  the  course  (A'  the  British  Government  in  re- 
gard to  the  headland  theory  shows  in  itself  that  the  claim  of 
Canada  has  no  substantial  foundation. 

It  is  evident,  therefore,  that  the  headland  doctrine   asserted 


40 

by  Canada  was  an  after-thought,  repudiated  both  times  that 
the  question  came  before  an  umpire  competent  to  pass  upon 
it,  that  the  British  Government  has  declined  to  enforce  it,  and 
would  yield  the  question  in  our  favor  if  our  position  was 
maintained  with  firmness.  In  all  justice  and  fairness,  how- 
ever, the  United  States  can  and  should  maintain  before  the 
world  its  fishery  rights  in  the  bays  of  Canada  more  than  six 
miles  in  width. 

With  no 'better  claim  on  the  part  of  Canada  our  fishing  ves- 
sels have  been  denied  their  commercial  privileges  under  the 
concurrent  action  of  the  two  countries  in  1830,  and  denied 
the  right  to  transport  their  catch  under  the  twenty-ninth  clause 
of  the  Treat}-  of  1  Sj  1 . 

In  [870,  more  than  fifty  years  after  the  Treaty  of  [818,  and 
forty  years  after  all  the  restrictions  on  the  commercial  inter- 
course between  the  United  States  and  British  North  America 
were  abolished,  Canada  for  the  first  time  set  up  the  claim  that 
the  American  vessels  had  no  right  to  buy  bait  in  any  of  the 
bays  or  harbors  of  Canada.  Previous  to  1870,  anil  during 
the  period  from  1877  to  1886,  our  fishing  vessels  continued  to 
buy  bait  in  Canadian  ports  without  interference. 

The  Halifax  Commission  in  1877  decided  that  buying  bait 
was  a  commercial  privilege,  and  declined  to  award  damages 
in  favor  of  Canada,  on  the  ground  that  it  was  not  an  incident 
of  the  treaty  of  1X71. 

"  Judicial  authority,"  says  Mr.  Phelps  in  his  letter  of  June  2d,  1SS6,  to 
Lord  Rosebery,  upon  this  question,  "is  to  the  same  effect.  'That  the  pur- 
rhase  of  bait  by  American  fishermen  in  the  provincial  ports  lias  been  a 
common  practice  and  is  well  known.  But  in  no  case,  so  far  as  I  can 
ascertain,  has  a  seizure  of  an  American  vessel  ever  been  enforced  on 
the  ground  of  the  purchase  of  hail,  or  of  any  other  supplies.  On  the 
hearing  before  the  Halifax  Commission  in  [877,  this  question  was  dis- 
cussed and  no  case  could  he  produced  of  any  such  condemnation. 
Vessels  shown  to  have  been  condemned  were  in  all  cases  adjudged 
guilty,  either  of  fishing  or  preparing  to  fish  within  the  prohibited  limit. 
And  in  the  case  of  the  "  White  lawn,''  tried  in  the  Admiralty  Court  of 
New  Brunswick,  before  fudge  Hazen,  in  1870,  I  understand  it  to  have 
been  distinctly  held  that  the  purchase  of  bait,  unless  proved  to  have- 
been  in  the  preparation  for  illegal  fishing,  was  not  a  violation  of  the 
treaty,  nor  of  any  existing  law,  and  afforded  no  ground  for  proceeding 
against  the  vessel.  " 


4' 

Judge  I  [azen,  in  the  "  \\  Kite  Fawn  "  case,  said  : — 

"Assuming  thai  the  fact  thai  such  purchase  establishes  a  preparing  to 
fish,  which  I  do  not  admit,  I  think  before  a  forfeiture  can  be  incurred  it 
must  be  shown  that  the  preparations  were  for  an  illegal  fishing  in  British 
u  aters." 

The  first  libel  against  any  American  fishing  vessel  for  buy- 
ing bait  in  port  was  in  1870.  The  construction  by  the  Hali- 
fax Commission  that  the  buying  of  bail  is  a  commercial  privi- 
lege was  in  [877,  and  from  1877  to  1886  American  fishing 
vessels  bought  bait  in  Canadian  ports  without  interference. 
In  [886  the  Canadians  seized  the  schooner  "  David  J.  Adams  " 
for  purchasing  bait  in  Annapolis  Basin,  Nova  Scotia,  and  sent 
her  to  St.  John,  N.  B.,  for  trial.  It  was  "not  pretended  that 
the  vessel  had  been  engaged  in  fishing  or  was  intending  to  fish 
in  the  prohibited  waters,  or  that  it  had  done  or  was  intending 
to  do  any  other  injurious  act." 

Mr.  Bayard,  in  his  letter  of  May  10th,  1886,  to  Sir  Lionel 
West,  referring  to  this  case,  said:  — 

••  I  ask  you  to  consider  the  results  of  excluding  American  vessels  duly 
possessed  of  permits  from  their  own  government  to  touch  and  trad( 
Canadian  ports,  as  well  as  to  engage  in  deep-sea  fishing,  from  exert  ising 
freely  the  same  customary  and  reasonable  rights  and  privileges  <»i  trade 
in  the  ports  of  the  British  colonies  as  are  freely  allowed  to  British  vessels 
in  all  the  ports  of  the  United  States  under  the  laws  and  regulations  to 
which  1  have  adverted." 

"Anion-  these  customary  rights  and  privileges  may  lie  enumerated 
the  purchase  of  ship  supplies  of  every  nature,  making  repairs,  the  ship- 
ment of  crews  in  whole  or  in  part,  and  the  purchase  of  ice  and  bait  for 
use  in  deep-sea  fishing.  Concurrently  these  usual  rational  and  conven- 
ient pri\  ileges  are  freelj  extended  to  and  are  fully  enjoyed  by  the  Cana- 
dian merchant  marine  of  all  occupations,  including  fishermen,  in  the 
ports  of  the  United  States.     The  question  therefore  arises  whether  such 

a  construction  is   admissible  as   would    convert   the  Treaty  of  1S1S   from 

being  an  instrumentality  for  the  protection  of  the  iri-shore  fisheries  along 
the  described  parts  of  the  British-American  coast  into  a  pretext  or  means 
ol  obstructing  the  business  of  deep-sea  fishing  by  citizens  of  tin-  United 
States,  and  of  interrupting  and  destroying  the  commercial  intercourse 
that  since  the  Treaty  of  [818,  and  independent  of  anj  treaty  whatever, 
has  grown  up  and  now  exists  under  the  concurrent  and  friendly  laws  and 
mercantile  regulations  ol'  the  respective  countries. 

"  I  may  recall  to  your  attention  the  fad  that  a  proposition  to  exclude 
the  vessels  ol  the  United  States  engaged  in  fishing  from  carrying  also 


42 

merchandise  was  made  by  the  British  negotiators,  and  was  abandoned. 
This  fact  would  seem  cl<  arly  to  indicate  that  the  business  of  fishing  did 
not  then  and  does  not  now  disqualify  a  vessel  from  also  trading  in  the 
regular  ports  of  entry." 

Thus  in  violation  of  treaty  and  other  obligations,  and  while 
Canadian  fishing  vessels  have  been  permitted  in  our  ports 
without  interference  to  purchase  bait  and  supplies,  Canada  has 
denied  the  right  to  American  fishing  vessels  to  purchase  bait 
and  supplies. 

The  right  of  fishing  vessels,  under  the  Treaty  of  1818,  to 
enter  Canadian  bays  and  harbors  for  "  wood  and  water," 
which  plainly  means,  as  these  words  were  used  in  1818,  fuel 
and  water,  has  been  taken  away  by  denying  them  the  right  to 
purchase  coal,  the  fuel  of  fishing  vessels  of  the  present  day. 

While  Canada,  under  the  twenty-ninth  clause  of  the  Treaty 
of  1 87 1,  has  been  making  shipments  in  bond  to  and  from 
Canada  through  the  United  States,  estimated  by  President 
Cleveland,  in  his  message  of  August  23d,  1888,  to  Congress, 
to  have  amounted  in  value  for  the  past  six  years  to  about 
5 J 70,000,000,  the  fishing  vessels  of  the  United  States  have 
not  been  allowed  to  ship,  under  the  same  treaty  provision, 
their  catch  through  Canada  to  the  United  States  from  Cana- 
dian ports. 

Where  pretexts  lor  depriving  American  vessels  of  their 
fishing  and  commercial  privileges  under  strained  constructions 
were  not  afforded,  Canada  has  endeavored  so  to  harass  and 
annoy  American  vessels  in  the  exercise  of  their  admitted 
treat}-  right  to  enter  bays  and  harbors  for  the  purposes  of 
shelter  and  repairing  damages,  and  of  obtaining  wood  and 
water,  as  to  make  these  rights  worthless. 

An  examination  of  the  list  of  American  vessels  seized, 
detained,  or  warned  off  from  Canadian  ports  in  the  years  1886 
and  1887  accompanying  the  Senate  Document  113,  of  the 
fust  session  of  the  Fiftieth  Congress,  shows  that  the  "  Helen 
F.  TVedick "  was  rein  <d  shelter  and  water;  the  "John  W. 
Bray  "  was  refused  shelter  and  supplies;  the  "Caroline 
Vought"  and  "Christina  Ellsworth"  refused  wood  and 
water;    the     'Novelty"    was     refused    coal    and    water;    the 


43 

••St. .well  Sherman."  "  Walter  L.  Rich,"  "  Newell    15.  Haw< 
"Nellie     M.    Snow,"    "Gertrude    Summi  "Charles    R. 

Washington,"  "John  M.  Ball,"  "John  Nye,"  "Asa  II. 
Perrere,"  "  Nathan  Cleaves,"  "  Frank  G.  Rich,"  "  Emma  i  I 
Curtes,"  "Charles  F.  Atwood,"  "Gertie  May,"  "Abbie  M. 
D  ering,"  "Cora  Louis,"  "  Eben  Dale,"  "Charles  Haskell," 
"Willie  Parkham,"  "  Eddie  Davidson,"  "  Cynosure,"  "  Lottie 
K  Hopkins,"  "Andrew  Burnham,"  "Harry  G.  French," 
"Col.  J.  11.  French,"  "  W.  11.  Wellington,"  "Ralph  1  log- 
don,"  "  Hattie  Evelyn,"  "Emma  \Y.  Brown,"  'Mary  II. 
Thomas,"  "Hattie  B.  West,"  "Ethel  Maud,"  were  vc\\\>vi\ 
food  or  provisions  or  supplies;  the  "  Mary  E.  Whorf "  was 
n.>t  permitted  to  make  repairs;  and  the  "Sarah  15.  Putnam'' 
and  "  Alice  P.  Higgins"  were  driven  from  port  in   storms.. 

The  "  Mollie  Adams  "  was  driven  off  into  a  storm  without 
sufficient  food,  after  entering  the  harbor  of  Mai  Pe'que  to  land 
and  after  she  had  safely  landed  a  crew  of  seventeen  ship- 
wrecked British  sailors  she  had  -one  out  of  her  way  to  rescue 
and  whom  she  had  fed  for  three  days.  The  captain  of  the 
Canadian  cruiser  "  Critic,"  fully  informed  of  the  humane  action 
of  the  Mollie  Adams  and  her  needs,  refused  assistance,  and 
threatened  to  seize  her  if  she  landed  any  of  the  wrecked  ma- 
terial on  board. 

There  are  other  cases  reported  where  vessels  seeking  shelter 
were  driven  to  sea  before  the  storm  had  abated,  but  the  cases 
referred  to  sufficiently  show  the  flagrant  violations  by  Canada 
of  treaty  and  all  other  obligations  in  a  spirit  of  barbarism  and 
viciousness  unworthy  of  a  civilized  nation. 

Without  commenting  upon  the  action  of  Captain  Quigley 
of  the  Canadian  cutler  "  Terror "  in  lowering  the  flag  ol  the 
United  States  fishing  schooner  "  Marion  Grimes,"  or  upon  the 
constant  and  arrogant  stopping  and  boarding  of  American 
fishing  vessels,  of  which  over  two  thousand  cases  were  reported 
in  two  years,  it  cannot  be  said  that  the  language  of  Hon. 
Daniel  Manning,  in  his  letter  as  Secretary  of  the  Treasur) 
February  5th,  1SS7,  to  the  chairman  of  the  House  Committee 
of  Foreign  Affairs,  is  either  unjust  or  too  severe  where  he  re- 
fers  to  "the    inhumanity  and    brutality   with    which    certain 


44 

Canadian  officials  treated  defenseless  American  fishermen 
during  the  last  summer,  even  those  who  had  -one  out  of 
their  way  to  rescue  Canadian  sailors,  and  having  entered  a 
Canadian  bay  to  safely  land  those  they  had  saved  attempted 
to  procure  f  >od  to  sustain  their  own  lives." 

The  acts  to  which  the  Canadians  have  been  driven  by  adopt- 
ing a  strained  construction  of  our  treaty  rights  are  as  absurd 
as  they  are  barbarous  and  inhuman.  Mr.  Phelps,  in  his  letter 
of  June  2d,  [886,  to  Lord    Rosebery,  said: — 

••Such  a  literal  construction  is  best  refuted  by  considering  its  prepos- 
terous consequences.  It'  a  vessel  enters  a  port  to  post  a  letter,  or  send 
a  telegram,  or  buy  a  newspaper,  to  obtain  a  physician,  or  even  to  lend 
assistance  to  the  inhabitants  in  fire,  Hood,  or  pestilence,  it  would,  upon 
this  construction,  be  held  to  violate  the  treaty  stipulations  maintained 
between  two  enlightened  maritime  and  friendly  nations  whose  ports  are 
freely  open  to  each  other  in  all  places  and  under  all  other  circum- 
0(  es." 

I  le  might  have  added  : — 

"Good  faith  clings  to  the  spirit,  and  fraud  to  the  letter  of  the  con- 
vention." 

Phillimore's  Int.  Law,  vol.  ii.,  page  9/. 

Yet  John  S.  D.  Thompson,  the  Canadian  Minister  of  Justice, 
gravely  wrote  to  Lord  Lansdowne,  on  July  22d,  1886. 

"That  which  Mr.  Phelps  calls  literal  interpretation  is  by  no  means  so 
preposterous  as  he  suggests  when  the  purpose  and  object  of  the  treaty 
come- to  be  considered.  It  was  necessary  to  keep  oul  foreign  fishing 
els,  excepting  in  cases  of  dire  necessity,  no  matter  under  what  pre- 
text they-  might  desire  to  come  in.  The  fisheries  could  not  be  preserved 
to  our  people  if  every  one  .,1  the  United  States  fishing  vessels  that  are 
accustomed  to  swarm  along  our  coasts  could  claim  the  right  to  enter  our 
harbors  'to  post  a  letter  or  send  a  telegram,  or  buy  a  newspaper ;  to 
obtain  a  physician  in  case  of  illness,  or  a  surgeon  in  case  oi  accident  ;  to 
land  or  bring  "it  a  passenger,  or  even  to  lend  assistance  to  the  inhabi- 
tants in  fire,  flood,  or  pestilence,'  or  to  '  buy  medicine  '  or  to  '  purchase 
a  new  rope-.'  The  sligh  I  ■  1  quaintance  with  the  negotiations  which  led 
to  the  Treaty  of  1S1S  induces  the  belief  that  if  the  United  States  nego- 
tiators had  suggested  these  as  purposes  for  which  their  vessels  should  be 
allowed  to  enter  our  waters,  the  proposal  would  have  been  rejected  as 
'  preposterous.'  " 

Previous  to  this  time   Mr.  Bayard's  public  and  official  ex- 
pressions in   relation  to  the  cases  brought  under  his  official 


45 

nptice  indicated  an  intention  to  insist  upon  the  full  and  unin- 
terrupted enjoyment  of  our  fishing  and  commercial   rights  in 

Canadian  waters  and  pi  »rts. 

In  his  letter  to  Sir  Lionel  West  on  May  29th,  1886,  refer- 
ring to  a  bill  authorizing  the  forcible  search,  seizure,  and  for- 
feiture of  any  foreign  vessel  found  within  any  harbor  in 
Canada,  or  hovering  within  three  marine  miles  of  the  coast-, 
bays,  or  creeks  of  Canada,  where  such  vessel  has  entered 
such  waters  for  any  purpose  not  provided  for  by  the  laws  ol 
Canada,  the  laws  of  Nations,  or  any  treaty  or  convention 
then  in  force,  Mr.  Bayard,  said: — 

"Such  proceedings  I  conceive  to  be  flagrantly  violative  of  the  recip- 
rocal commercial  privileges  to  which  citizens  of  the  United  States  are 
lawfully  entitled  under  the  statutes  of  Great  Britain  and  the  well  defined 
and  publicly  proclaimed  authority  of  both  countries,  besides  being,  in 
respect  of  the  existing  conventions  between  the  two  countries,  an  as- 
sumption of  jurisdiction  entirely  unwarranted  and  which  is  wholly  denied 
by  the  United  States." 

Later  Mr.  Bayard  said: — 

(  In  June  7th,  1SN6  :  "  I  earnestly  protest  against  this  unwarranted 
withholding  of  lawful  commercial  privileges  from  an  American  vessel 
and  her  owners,  and  for  the  loss  and  damage  consequent  thereon  the 
government  of  Great  Britain  will  be  held  liable." 

On  July  10th,  1886  :  "  Against  this  treatment  1  make  instant  and  formal 
protest  as  an  unwarranted  interpretation  and  application  of  the  treaty  by 
the  officers  of  the  Dominion  of  Canada  and  the  province  of  Nova  Scotia, 
as  an  infraction  of  the  laws  of  commercial  and  maritime  intercourse  ex- 
isting between  the  two  countries  and  as  a  violation  of  hospitality,  and  for 
any  loss  or  injury  resulting  therefrom  the  government  of  Her  Britannic 
Majesty  will  be  held  liable." 

On  July  30th,  [886:  "These  are  flagrant  violations  of  treaty  rights  of 
their  citizens  lor  which  the  United  States  expect  prompt  remedial  action 
bj  Her  Majesty's  government,  and  1  have  to  ask  thai  such  instructions 
may  be  issued  forthwith  to  the  provincial  officials  of  Newfoundland  and 
of  the  Magdalen  Islands  .is  will  cause  the  treaty  rights  of  citizens  of  the 
United  States  to  be  duly  respected.  For  the  losses  occasioned  in  the 
two  cases  I  have  mentioned,  compensation  will  hereafter  be  expected 
from  Her  Majesty's  Government  when  the  amount  shall  have  been  accu- 
rately ascertained." 

(  m  August  9th,  1SS6  :  "  The  hospitality  which  all  civilized  nations  pre- 
scribe has  thus  been  violated  and  the  stipulations  of  a  treaty  grossly  in- 
fracted." 

On  August  [8th,  1886:  "The  firing  of  a  gun  across  their  bows  was  a 
most  unusual  and  wholly  uncalled  for  exhibition  of  hostility,  and  equally 


46 

so  was  the  placing  of  armed  nun  on  board  the  lawful  and  peaceful  craft 
of  a  friendly  nation." 

On  September  23d,  1SS6 :  "An  illustration  of  the  vexatious  spirit  in 
which  the  officers  of  the  dominion  o(  Canada  appear  to  seek  to  penalize 
and  oppress  those  fishing  vessels  of  the  United  States  lawfully  engaged 
in  fishing  which  from  any  cause  are  brought  within  their  reach." 

On  November  6th,  [886:  "If  the  unfriendly  and  unjust  system  of 
which  these  cases  now  presented  are  a  part,  is  sustained  by  Her  .Majes- 
ty's Government,  serious  results  will  almost  necessarily  ensue,  great  as 
the  desire  of  this  Government  is  to  maintain  the  relations  of  good  neigh- 
borhood." 

These  being  the  rights  of  the  United  States  in  the  North 
Atlantic  fisheries,  and  these  the  claims  and  pretexts  set  up  by 
Canada,  and  this  the  resolute  position  taken  by  the  present 
Administration  in  the  year  1 886,  and  previous  thereto,  with 
regard  to  the  unwarranted  seizures  and  annoyances  to  our 
fishing  vessels,  it  would  naturally  be  assumed  that  no  treaty 
attempting  to  settle  the  differences  concerning  our  fishery 
rights  would  subsequently  be  proposed  or  assented  to  by  the 
same  Administration  that  did  not  restrict  the  headland  theory 
of  Canada  to  bays  of  width  less  than  six  miles,  that  did  not 
confirm  the  right  of  our  fishing  vessels  to  buy  bait  and  sup- 
plies and  exercise  other  ordinary  commercial  rights  in  Cana- 
dian ports,  and  to  transship  their  catch  under  the  provisions 
of  the  Treaty  of  [871,  and  that  did  not  fully  provide  indem- 
nity for  the  vessels  illegally  seized  or  deprived  of  treaty  rights. 


The  Chamberlain-Bayard  Treaty. 

WHEREAS  differences  have  arisen  concerning  the  interpre- 
tation of  Article  I.  of  the  Convention  of  October  20th,  1818, 
the  United  States  of  America  and  Her  Majesty  the  Queen  of 
the  United  Kingdom  of  Great  Britain  and  Ireland,  being 
mutually  desirous  of  removing  all  causes  of  misunderstanding 
in  relation  thi  n  to,  and  of  promoting  friendly  intercourse  and 
hborhood  between  the  United  States  and  the  Pos- 
of  Her  Majesty  in  North  America,  have  resolved  to 
conclude  a  Treat)'  to  that  end,  and  have  named  as  their  Pleni- 
potentiaries, that  is  to  say: — 

The   President  of    the    United  States  ;    Thomas    F.  Bayard, 


47 

Secretarydf  State;  William  L.  Putnam,  of  Maine ;  and  James 
B.  Angell,  of  Michigan  ; 

And  Her  Majesty  the  Queen  of  the  United  Kingdom  of 
Curat  Britain  and  Ireland;  the  Right  Honorable  Joseph 
Chamberlain,  M.  P.;  the  Honorable  Sir  Lionel  Sackville  \V< 
K.  C.  M.  G.;  Her  Britannic  Majesty's  Envoy  Extraordinary 
and  Minister  Plenipotentiary  to  the  United  States  of  America ; 
and  Sir  Charles  Tupper,  G.  C.  M.  G.,  C.  B.,  Minister  of  Fi- 
nance of  the  Dominion  of  Canada; 

Who,  having  communicated  to  each  other  their  respective 
Full  Powers,  found  in  good  and  due  form,  have  agreed  upon 
the  following  articles: — 

ARTICLE    I. 

The  High  Contracting  Parties  agree  to  appoint  a  mixed 
Commission  to  delimit,  in  the  manner  provided  in  this  Treaty, 
the  British  waters,  bays,  creeks,  and  harbors  of  the  coasts  of 
Canada  and  of  Newfoundland,  as  to  which  the  United  States, 
by  Article  I.  of  the  Convention  of  October  20th,  l8l8,  between 
the  United  States  and  Great  Britain,  renounced  forever  any 
liberty  to  take,  dry,  or  cure  fish. 

ARTICLE  II. 

The  Commission  shall  consist  of  two  commissioners  to  be 
named  by  Her  Britannic  Majesty,  and  of  two  commissioners 
to  be  named  by  the  President  of  the  United  States,  without 
delay,  after  the  exchange  of  ratifications  of  this  Treaty. 

The  Commission  shall  meet  and  complete  the  delimitation 
as  soon  as  possible  thereafter. 

In  case  of  the  death,  absence,  or  incapacity  of  any  com- 
missioner, or  in  the  event  of  any  commissioner  omitting  or 
ceasing  to  act  as  such,  the  President  of  the  United  Stales  or 
Her  Britannic  Majesty  respectively  shall  forthwith  name  an- 
other person  to  act  as  commissioner  instead  ol  the  commis- 
sioner originally  named. 

ARTICLE  III. 

The  delimitation  referred  to  in  Article  I.  >>(  this  Treaty 
shall  be  marked  upon  British  Admiralty  charts  by  a  series  dl 


48 

lines  regularly  numbered  and  duly  described.  The  charts  so 
marked  shall,  on  the  termination  of  the  work  of  the  Com- 
mission, be  signed  by  the  commissioners  in  quadruplicate,  one 
copy  whereof  shall  be  delivered  to  the  Secretary  of  State  of 
the  United  States,  and  three  copies  to  Her  Majesty's  Govern- 
ment. The  delimitation  shall  be  made  in  the  following  manner, 
and  shall  be  accepted  by  both  the  High  Contracting  Parties  as 
applicable  for  all  purposes  under  Article  I.  of  the  Convention 
of  (  >ctober  20th,  1818,  between  the  United  States  and  Great 
Britain. 

The  three  marine  miles  mentioned  in  Article  I.  of  the  Con- 
vention of  October  20th,  181 8,  shall  be  measured  seaward 
from  low-water  mark;  but  at  every  bay,  creek,  or  harbor  not 
otherwise  specially  provided  for  in  this  Treaty  such  three 
marine  miles  shall  be  measured  seaward  from  a  straight  line 
drawn  across  the  bay,  creek,  or  harbor  in  the  part  nearest  the 
entrance  at  the   first  point  where  the  width   does  not  exceed 

ten  marine  miles. 

ARTICLE  IV. 

At  or  near  the  following  bays  the  limits  of  exclusion  under 
Article  I.  of  the  Convention  of  October  20th,  18 18,  at  points 
more  than  three  marine  miles  from  low-water  mark  shall  be 
established  by  the  following  lines,  namely:— 

At  the  Baie  des  Chaleurs  the  line  from  the  Light  at  Birch 
Point  on  Miscou  Island  to  Macquereau  Point  Light;  at  the 
Bay  of  Miramichi,  the  line  from  the  Light  at  Point  Escumi- 
nac  to  the  Light  on  the  Eastern  Point  of  Tabisintac  Gully; 
at  Egmont  Bay,  in  Prince  Edward  Island,  the  line  from  the 
Light  at  Cape  Egmont  to  the  Light  at  West  Point;  and  off 
St.  Ann's  Bay,  in  the  Province  of  Nova  Seotia,  the  line  from 
Cape  Smoke  to  the  Light  at  Point  Aconi. 

At  Fortune  Bay,in  Newfoundland,  the  line  from  Connaigre 
J  had  to  the  Light  on  the  south-easterly  end  of  Brunet  Island, 
thence  to  Fortune  Head;  at  Sir  Charles  Hamilton  Sound,  the 
line  from  the  south-east  point  of  Cape  Fogo  to  White  Island, 
thence  to  the  north  end  of  Peckford  Island,  and  from  the 
south  end  of  Peckford  Island  to  the  P2ast  Headland  of  Ragged 
I  [arbor. 


49 

At  or  near  the  following  bays  the  limits  <>f  exclusion  shall 
be  three  marine  miles  seaward  from  the  following  lines,  name- 

iy:- 

At  or  near  Rarrington  Pay,  in  Nova  Scotia,  the  line  from 
the  Light  on  Stoddard  Island  to  the  Light  on  the  south  point 

of  Cape  Sable,  theme  to  the  Light  at  Baccaro  Point;  at 
Chedabucto  and  St.  Peter's  Bays,  the  line  from  Cranberry 
Island  Light  to  Green  Island  Light,  thence  to  Point  Rouge; 
at  Mira  Day,  the  line  from  the  Light  on  the  east  point  of 
Scatari  Island  to  the  north-easterly  point  of  Cape  Morien  ; 
and  at  Placentia  Bay,  in  Newfoundland,  the  line  from  Latine 
Point,  on  the  eastern  mainland  shore,  to  the  most  southerly 
point  of  Red  Island,  thence  by  the  most  southerly  point  of 
Merasheen  Island  to  the  mainland. 

Lou-;'  Island  and  Brycr  Island,  at  St.  Man's  Bay  in  Nova 
Scotia,  shall,  for  the  purpose  of  delimitation,  be  taken  as  the 
coasts  of  such  bay. 

ARTICLE   V. 

Nothing  in  this  Treat}-  shall  be  construed  to  include  within 
the  common  waters  any  such  interior  portions  of  any  bays, 
creeks,  or  harbors  as  cannot  be  reached  from  the  sea  without 
passing  within  the  three  marine  miles  mentioned  in  Article  I. 
of  the  Convention  of  October  20th,  1S18. 

articlp:  vi. 

The  commissioners  shall  from  time  to  time  report  to  each 
of  the  High  Contracting  Parties,  such  lines  as  they  may  have 
agreed  upon,  numbered,  described,  and  marked  as  herein  pro- 
vided, with  quadruplicate  charts  thereof;  which  lines  so  re- 
ported shall  forthwith  from  time  to  time  be  simultaneously 
proclaimed  by  the  High  Contracting  Parties,  and  be  binding 
after  two  months  from  such  proclamation. 

ARTICLE    VII. 

Any  disagreement  of  the  commissioners  shall  forthwith  be 
referred  to  an  umpire  selected  by  tin-  Secretary  of  State  of 
the  United  States  and  Her  Britannic  Majesty's  Minister  at 
Washington  ;  and  his  decision  shall  be  final. 


5o 

ARTICLE  VIII. 
Each  of  the  High  Contracting  Parties  shall  pay  its  own  com- 
missioners and  officers.  All  other  expenses  jointly  incurred 
in  connection  with  the  performance  of  the  work,  including 
compensation  to  the  umpire,  shall  be  paid  by  the  High  Con- 
tracting Parties  in  equal  moieties. 

ARTICLE    IX. 

Nothing  in  this  treaty  shall  interrupt  or  affect  the  free  navi- 
gation of  the  Strait  of  Canso  by  fishing  vessels  of  the  United 

States. 

ARTICLE  X. 

United  States  fishing  vessels  entering  the  bays  or  harbors 
referred  to  in  Article  I.  of  this  Treaty  shall  conform  to  harbor 
re"-ulations  common  to  them  and  to  fishing  vessels  of  Canada 
or  of  Newfoundland. 

They  need  not  report,  enter,  or  clear,  when  putting  into 
such  bays  or  harbors  for  shelter  or  repairing  damages,  nor 
when  putting  into  the  same,  outside  the  limits  of  established 
ports  of  entry,  for  the  purpose  of  purchasing  wood  or  of  ob- 
taining water;  except  that  any  such  vessel  remaining  more 
than  twenty-four  hours,  exclusive  of  Sundays  and  legal  holi- 
days, within  any  such  port,  or  communicating  with  the  shore 
therein,  may  be  required  to  report,  enter,  or  clear;  and  no 
vessel  shall  be  excused  hereby  from  giving  due  information  to 
boarding  officers. 

They  shall  not  be  liable  in  any  such  bays  or  harbors  for 
compulsory  pilotage ;  nor,  when  therein  for  the  purpose  of 
shelter,  of  repairing  damages,  of  purchasing  wood,  or  of  ob- 
taining water,  shall  they  be  liable  for  harbor  dues,  tonnage 
dues,  buoy  dues,  light  dues,  or  other  similar  dues;  but  this 
enumeration  shall  not  permit  other  charges  inconsistent  with 
the  enjoyment  of  the  liberties  reserved  or  secured  by  the 
Convention  of  October  20th,  1818. 

ARTICLE  XI. 

United  States  fishing  vessels  entering  the  ports,  bays,  and 
harbors  of  the  Eastern  and  Northeastern  coasts  of  Canada  or 


5' 

of  tin  coasts  of  Newfoundland  under  stress  of  weather  or 
other  casualty  may  unload,  reload,  transship,  or  sell,  subject  to 
customs  laws  and  regulations,  all  fish  on  hoard,  when  such 
unloading,  transshipment,  or  sale  is  made  necessary  as  inci- 
dental to  repairs,  and  may  replenish  outfits,  provisions,  and 
supplies  damaged  or  lost  by  disaster;  and  in  case  of  death  or 
sickness  shall  be  allowed  all  needful  facilities,  including  the 
shipping  of  crews. 

Licenses  to  purchase  in  established  ports  of  entry  of  the 
aforesaid  coasts  of  Canada  or  of  Newfoundland,  for  the  home- 
ward voyage,  such  provisions  and  supplies  as  are  ordinarily 
sold  to  trading  vessels,  shall  be  granted  to  United  States  fish- 
ing vessels  in  such  ports,  promptly  upon  application  and  with- 
out charge;  and  such  vessels  having  obtained  licenses  in  the 
manner  aforesaid,  shall  also  be  accorded  upon  all  occasions 
such  facilities  for  the  purchase  of  casual  or  needful. provisions 
and  supplies  as  are  ordinarily  granted  to  the  trading  vessels; 
but  such  provisions  or  supplies  shall  not  be  obtained  by 
barter,  nor  purchased  for  re-sale  or  traffic. 

ARTICLE  XII. 

Fishing  vessels  of  Canada  and  Newfoundland  shall  have 
on  the  Atlantic  coast  of  the  United  States  all  the  privileges 
reserved  and  secured  by  this  treaty  to  United  States  fishing 
vessels  in  the  aforesaid  waters  of  Canada  and  Newfoundland. 

ARTICLE  XIII. 

The  Secretary  of  the  Treasury  of  the  United  States  shall 
make  regulations  providing  for  the  conspicuous  exhibition  by 
every  United  States  fishing  vessel,  of  its  official  number  ><n 
each  bow;  ami  any  such  vessel,  required  by  law  to  have  an 
official  number,  and  failing  to  comply  with  such  regulations, 
shall  not  be  entitled  to  the  licenses  provided  for  in  this 
Treat)-. 

Such  regulations  shall  be  communicated  to  Her  Majesty's 
Government  previously  to  their  taking  effect. 


52 

ARTICLE  XIV. 

The  penalties  for  unlawfully  fishing  in  the  waters,  bays, 
creeks,  and  harbors  referred  to  in  Article  I.  of  this  Treaty,  may 
extend  to  forfeiture  of  the  boat  or  vessel  and  appurtenances, 
and  also  of  the  supplies  and  cargo  aboard  when  the  offense 
was  committed  ;  and  for  preparing  in  such  waters  to  unlaw- 
fully fish  therein,  penalties  shall  be  fixed  by  the  court,  not  to 
exceed  those  for  unlawfully  fishing;  and  for  any  other  viola- 
tion of  the  laws  of  Great  Britain,  Canada,  or  Newfoundland, 
relating  to  the  right  of  fishery  in  such  waters,  bays,  creeks,  or 
harbors,  penalties  shall  be  fixed  by  the  court,  not  exceeding 
in  all  three  dollars  for  every  ton  of  the  boat  or  vessel  con- 
cerned. The  boat  or  vessel  may  be  holden  for  such  penalties 
and  forfeitures. 

The  proceedings  shall  be  summary  and  as  inexpensive  as 
practicable.  The  trial  (except  on  appeal)  shall  be  at  the  place 
of  detention,  unless  the  judge  shall,  on  request  of  the  defense, 
order  it  to  be  held  at  some  other  place  adjudged  by  him  more 
convenient.  Security  for  costs  shall  not  be  required  of  the 
defense,  except  when  bail  is  offered.  Reasonable  bail  shall  be 
accepted.  There  shall  be  proper  appeals  available  to  the  de- 
fense only;  and  the  evidence  at  the  trial  may  be  used  on 
appeal. 

Judgments  of  forfeiture  shall  be  reviewed  by  the  Governor- 
General  of  Canada  in  Council,  or  the  Governor  in  Council  of 
Newfoundland,  before  the  same  are  executed. 

ARTICLE  XV. 

Whenever  the  United  States  shall  remove  the  duty  from 
fish-oil,  whale-oil,  seal-oil,  and  fish  of  all  kinds  (except  fish 
preserved  in  oil),  being  the  produce  of  fisheries  carried  on  by 
the  fishermen  of  Canada  and  Newfoundland,  including  Lab- 
rador, as  well  as  from  the  usual  and  necessary  casks,  barrels, 
kegs,  cans,  and  other  usual  and  necessary  coverings  contain- 
ing the  products  above 'mentioned,  the  like  products,  being 
the  produce  of  fisheries  carried  on  by  the  fishermen  of  the 
United  States,  as  well  as  the  usual  and  necessary  coverings  of 


53 

the  same,  .is  above  described,  shall  be  admitted  free  of  duty 
into  the  Dominion  ol  Canada  and  Newfoundland. 

And  upon  such  removal  ol  duties,  and  while  the  aforesaid 
articles  are  allowed  to  be  broughl  into  the  United  States  by 
British  subjects,  without  duty  being  reimposed  thereon,  the 
privilege  of  entering  the  ports,  bays,  and  harbors  of  the  afore- 
said coasts  of  Canada  and  Newfoundland  shall  be  accorded 
to  United  States  fishing  vessels  by  annual  licenses,  free  of 
charge,  for  the  following  purposes,  namely. — 

i.  The  purchase  of  provisions,  bait,  ice,  seines,  lines,  and 
all  other  supplies  and  outfits. 

2.  Transshipment  of  catch,  for  transport  l>y  any  means  of 
conveyance. 

3.  Shipping  of  crews. 

Supplies  shall  not  be  obtained  by  barter,  but  bait  may  be- 
so  obtained. 

The  like  privileges  shall  be  continued  or  given  to  fishing 
vessels  of  Canada  and  of  Newfoundland  on  the  Atlantic 
coasts  of  the  United  States. 

ARTICLE  XVI. 

This  Treaty  shall  be  ratified  by  the  President  of  the  United 
States,  by  and  with  the  advice  and  consent  of  the  Senate,  and 
by  Her  Britannic  Majesty,  having  received  the  assent  of  the 
Parliament  of  Canada  and  of  the  Legislature  of  Newfound- 
land, and  the  ratifications  shall  be  exchanged  at  Washington 
as  soon  as  possible. 

In  faith  whereof,  we,  the  respective  Plenipotentaries,  have 
signed  this  Treat}-,  and  have  hereunto  affixed  our  seals. 

Done  in  duplicate,  at  Washington,  this  fifteenth  day  of 
February,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  eighty-eight. 

(Signed)        T.  F.   BAYARD,  [seal] 

WILLIAM  L.  PUTNAM.         [seal] 
JAMES  B.  ANGELL,  [si  \i  | 

J.  CHAMBERLAIN,  [seal] 

L.  S.  SACKVILLE  WEST,     [seal] 
CHARLES    fUPPER.  [seal] 


54 

A  General   Review  of  the   Chamberlain- 
Bayard  Treaty. 

The  spirit  that  pervades  the  Treat}-  of  1783  is  that  of  the 
Continental  Congress,  which  by  its  resolution  of  May  27th, 
1779,  declared  "That  in  no  case  by  an)-  treat)-  of  peace  the 
common  right  of  fishing  be  given  up." 

John  Adams,  in  his  letter  of  May  30th,  18 14,  to  Richard 
Rush,  said  "  that  the  men  Bayard,  Russell,  Clay,  and  even 
Gallatin,  would  cede  the  fee  simple  of  the  United  States  as  soon 
as  the}-  would  the  fisheries." 

We  recall  that  Benjamin  Rush,  in  his  letter  to  Secretary 
Marcy  in  1853,  says  that  "  Had  Mr.  Gallatin  been  told  by  the 
British  plenipotentiaries  that  the  first  article  of  the  convention 
would  close  the  extensive  waters  of  that  bay  (referring  to 
the  Bay  of  Fundy)  against  our  fishermen,  I  do  not  believe  he 
would  have  signed  it.  I  am  sure  I  would  not  have  signed  it. 
The  spirit,  context,  all  the  concomitants  of  the  article,  pointed 
to  a  different  meaning." 

Certainly  the  spirit  of  the  treaty  of  1818,  and  of  the  Ameri- 
can commissioners  of  that  treaty,  was  not  to  abandon  our  an- 
cient fishery  rights. 

If  that  same  spirit  pervaded  the  commissioners  on  the  part 
of  the  United  States  in  the  proposed  treaty  of  1888,  it  is  un- 
fortunate that  there  is  nothing  in  the  treaty,  or  in  what  we 
have  been  able  to  learn  of  its  negotiation,  to  show  it.  On  the 
contrary  the  fundamental  principles  of  "property  and  sovereign- 
ty, which  are  the  basis  of  our  fishery  rights,  seem  to  have  been 
abandoned  at  the  outset  by  our  own  commissioners  and  our 
case  to  have  been  presented  and  considered,  as  Mr.  Bayard 
expresses  it  in  his  letter  to  a  gentleman  in  Boston,  on  the 
basis  of  the  "fishery  rights  of  one  country  in  the  jurisdic- 
tional waters  of  another." 

'  There  was  one  subject,"  Sir  Charles  Tupper  stated  in  his 
speech  in  the  House'  of  Commons  of  Canada,  "  on  which  I 
was  glad  to  find  that  the  American  plenipotentiaries  and 
myself  were  entirely  as  one.  They  expressed  no  -  wish  to 
acquire  the  right  to  fish  in  the  jurisdiction  waters  of  Canada. 


55 

With   that    expression   of  opinion    on    their   part    I    heartily 
concurred." 

This  certainly  was  not  treating  our  fishery  rights  as  "  our 
fisheries,"  to  use  the  words  of  Mr.  Jefferson,  bul  as  "  theirs," 
and  it  is  therefore  not  surprising  to  find  the  results  of  the  ne- 
gotiation in  a  treat)-  which  absolutely  abandons  the  princip 
and  positions  for  which  the  United  States  "  had  so  long  and 
so  strenuously  contended." 

The  discussions  of  the  commissioners  during  the  negotiation 
have  not  been  made  public  by  our  commissioners.  They  ha 
not  disclosed  what  occurred,  and  we  are  indebted  for  all  that 
we  have  learned  with  regard  to  the  negotiations  to  the  speech 
of  Sir  Charles  Tupper  in  support  oi  the  treaty.  lie  declared 
his  surprise  that  they  were  not  disclosed.  "  I  have  explained 
to  the  house,"  he  said,  "  my  great  surprise  at  finding  that  they 
did  not  give  what  I  assumed  that  the  purely  formal  protocols  to 
which  I assented  would  give,  that  is  to  say,  all  the  proposals 
made,  and  the  counter  proposals,  and  the  replies  on  both 
sides.      I  assumed  that  the  protocols  would  contain  those." 

The  British  commissioners  therefore  expected  them  to  b< 
published,  but  our  commissioners  have  declined  to  disclose 
them.  While  the  British  commissioners  not  only  did  not 
object  to,  but  expected,  the  details  concerning  the  negotia- 
tions to  be  made  public,  when  the  Senate  asked  for  tin 
papers  and  information  concerning  the  progress  of  the  ne- 
gotiations the  President  declined  to  furnish  them.  We  are 
left  necessarily  to  Mr.  Tupper  to  explain  the  reasons  for 
many  of  the  provisions  of  the  treaty. 

The  headland  theory  of  Canada — the  "  new  doctrine  "  which 
the  British  Government  itself  declined  to  enforce,  is  admitted, 
and  our  fishing  vessels  are  excluded  from  all  bays  ten  miles 
wide  at  their  mouth,  and  expressly  from  wider  bays  ranging 
from  fifteen  to  twenty  one  miles  in  width,  such  as  the  Bay  ol 
Chaleurs,  the  Bay  of  Mirumichi,  Keanont  Bay,  O  fife  tan  nes  Bay, 
Fortune  Bay,  Sir  Charles  Hamilton's  Sound,  and  Barrington 
Bay;  and,  consequently,  with  the  exception  of  the  Bay  of 
Fundy,  and  a  few  bays  ^n  the  Newfoundland  coast,  every  b.e 
ol  value  to  our  fishermen  is  closed  by  the  treaty. 


56 

Thus  the  difference  with  Canada  upon  the  headland  theory 

was  proposed  to  be  settled,  and  by  articles  I.,  II.,  III.,  IV., 
Y.,  VI.,  and  VII.  of  the  treaty  the  position  of  the  United 
States  was  abandoned,  and  valuable  rights,  which  would 
probably  have  been  conceded  at  all  events  not  earnestly  dis- 
puted, were  voluntarily  surrendered. 

Certainly  the  new  American  policy  of  concession  shown 
at  the  outset  of  the  negotiations,  and  described  by  Sir 
Charles  Tupper,  was  fully  maintained  throughout.  He  says: 
"  I  think  the  very  spirit  and  policy  of  this  commission 
which  was  proposed,  was  to  ascertain,  to  settle,  and  to  remove 
these  doubts,  and  I  say,  when  we  met  these  gentlemen  and 
they  proposed  to  us  this  ten-mile  limit t  and  said  :  If  you  give  up 
the  extreme  contention  that  no  bay,  however  broad  its  mouth, 
can  be  entered  by  an  American  fisherman,  we  will  agree  to 
take  the  ten-mile  limit,  and  when  they  met  its  further  and  said 
that,  in  addition  to  that  they  would  take  np  and  consider  the 
question  of  any  special  bays  we  thought  ought  not  to  be  open  to 
foreigners,  then  we  took  this  question  up,  as  we  were  bound  to 
take  it  up,  and  found  a  solution  by  mutual  concession.  In- 
stead of  giving  in  to  their  contention  that  they  could  go  into 
the  Baie  des  Chaleurs  within  three  miles  of  the  shore,  we 
made  a  treaty  by  which  they  cannot  enter  the  Baie  des  Chal- 
eurs at  all.  And  the  honorable  gentleman  knows  that  the 
Miramichi  Bay,  and  a  number  of  other  bays  that  we  consider 
of  vital  importance  to  be  kept  free  from  any  kind  of  intrusion, 
have  been  conceded  to  us." 

Article  XL  provides: — 

"  United  States  fishing  vessels  entering  the  ports,  bays,  and 
harbors  of  the  eastern  and  north-eastern  coasts  of  Canada  or 
of  the  coasts  of  Newfoundland,  under  stress  of  weather  or 
other  casualty,  may  unload,  reload,  transship,  or  sell,  subject 
to  customs,  laws,  and  regulations,  all  fish  on  board,  when 
such  unloading,  transshipment,  or  sale  is  made  necessary  as 
incidental  to  repairs,  and  may  replenish  outfits,  provisions, 
and  supplies  damaged  or  lost  by  disaster ;  and  in  case  of 
death  or  sickness  shall  be  allowed  all  needful  facilities,  in- 
cluding the  shipping  of  crews." 


57 

Without  a  treaty  provision  these  rights  should  be  secure. 
Unless  "  in  stress  of  weather  or  other  casualty,"  when  "  neces- 
sary as  incidental  to  repairs,"  or  "in  case  of  death  or  sick- 
ness," these  privileges  are  not  to  be  exercise:!.     No  civilized 

nation  would  require  a  vessel  to  point  to  a  treat)-  provision  to 
secure  the  ordinary  rights  of  shelter. 

But  the  effect  of  inserting  this  provision  is  that  it  is  an 
admission  on  our  part  th.it  without  such  a  provision  our  fish- 
in-  vessels  would  not  have  the  right,  and  therefore  they  have 
not  had  the  right  in  the  past  and  they  do  not  have  the  right 
now.  This  is  confirmed  by  the  expression  of  Sir  Charles 
Tupper  when  he  says,  "Although  this  is  a  very  considerable 
and  important  concession,  and  although  we  were  not  com- 
pelled in  my  judgment,  under  a  strict  literal  interpretation  of 
the  treaty  of  [818,  to  make  it,  yet  it  was  a  wise  and  judicious 
concession  to  make."  Evidently  our  commissioners  agreed 
with  this  view  or  they  would  not  have  assented  to  it. 

A  provision  of  this  kind  is  a  disgrace  to  any  civilized 
nation;  a  provision  less  liberal  than  that  accorded  to  us  by 
articles  IX.  and  X.  of  the  treat}-  with  Algiers  in  1S15,  which 
provide  as  follows  : — 

"Vessels  of  either  of  the  contracting  parties  putting  into 
ports  of  the  other,  and  having  need  of  provisions  or  other 
supplies,  shall  be  furnished  at  the  market  price;  and  if  any 
such  vessel  should  so  put  in  from  .1  disaster  at  sea,  and  have 
occasion  to  repair,  she  shall  be  at  liberty  to  land  and  re-em- 
bark her  cargo  without  paying  any  customs  or  duties  what- 
ever; but  in  no  case  shall  she  be  compelled  to  land  her 
cargo. 

"  Should  a  vessel  of  either  of  the  contracting  parties  be  cast 
on  shore  within  the  territories  of  the  other,  all  proper 
assistance  shall  be  given  to  her  crew;  no  pillage  shall  be 
allowed;  the-  property  shall  remain  at  the  disposal  of  the 
owners;  and  if  reshipped  on  board  of  any  vessel  for  exporta- 
tion no  customs  or  duties  whatever  shall  be  required  to  be 
paid  thereon,  and  the  crew  shall  be  protected  and  succored 
until  the\'  can  be  sent  to  their  own  country." 
See  Statutes  at  Large,  vol.  8,  page  224. 


5$ 

That  the  X.  and  the  XI.  provisions  should  be  admitted  by 
American  commissioners  as  necessary  amendments  to  the 
treaties  negotiated  by  John  Adams,  Benjamin  Franklin,  John 
law  1  [enry  Laurens,  Albert  Gallatin,  and  Richard  Rush  is 
enough  to  make  them  turn  in  their  graves. 

The  Hon.  William  Henry  Trescott,  with  some  indignation 
says:  "I  refuse  absolutely  to  discuss  '  privileges '  granted  to 
us  in  distiess.  They  are  not  the  grants  of  treaties  or  arrange- 
ments. They  are  the  common  rights  of  humanity.  If  the 
English  and  Canadian  authorities  desire  to  refuse  shelter  to 
vessels  in  distress,  to  exclude  a  sick  seaman  from  the  rest 
and  aid  of  a  hospital  (if  any  such  there  be  on  the  Canadian- 
Newfoundland  coast)  or  to  compel  a  cargo  of  fish  to  be 
thrown  overboard,  because  it  shall  neither  be  sold  nor  trans- 
shipped, let  them  do  so.  The  common  sense  and  resolution 
of  the  American  people  and  the  public  opinion  of  the  civil- 
ized world  will  correct  such  conduct  sooner  and  surer  than  the 
creak}'  machinery  of  this  diplomatic  invention  of  our  com- 
missioners." 

Notwithstanding  Mr.  T upper  thought  this  was  a  wise  and 
judicious  concession,  yet  it  is  evident  from  what  he  also  says 
that  Canada,  no  matter  what  her  claim,  would  be  required  by 
every  rule  of  humanity  to  grant  this  much  to  our  fishermen, 
without  the  treat}'  provision. 

"What  would  be  thought  of  Canada,"  he  says,  "if  an 
American,  or  a  United  States  fishing  vessel — I  do  not  like 
to  use  the  word  American,  because  I  think  it  is  a  term  we 
have  as  much  right  to  as  our  neighbors;  I  prefer  to  speak  of 
them  as  the  people  of  the  United  States,  and  ourselves  as 
Canadians,  and  when  I  speak  of  the  whole  continent  of 
America  I  do  not  hesitate  to  apply  the  term  American  to  the 
people  of  both  Canada  and  the  United  States — but  what 
would  be  thought  of  Canada  if  a  vessel  of  the  United  States, 
loaded  with  fresh  mackerel  orfish  of  any  other  description,  were 
driven  by  stress  of  weather,  and  perhaps  in  a  sinking  condi- 
tion, and  compelled  to  resort  to  a  Canadian  port,  and  if, 
instead  of  allowing  her  to  transship  her  cargo  or  sell  it  on 
paying  the  duty,  and    go   upon   a  marine   slip  for  repairs,  we 


59 

said  :  No;  you  must  throw  overboard  the  whole  of  your  i 
because  we  find   you   are  not  allowed  to  bring  your  fish  into 
Canada  ?  " 

Article  XII.  provides :  "  Fishing  vessels  of  Canada  and  New- 
foundland shall  have,  on  the  Atlantic  coast  of  the  United 
States,  all  the  privileges  reserved  and  secured  by  this  treaty 
to  United  Slates  fishing  vessels  in  the  aforesaid  waters  of 
Canada  and  Newfoundland." 

Under  the  Treaties  of  1783  and  [818  the  Canadians  had  no 
reciprocal  rights  of  fishing  on  our  coast.  Under  the  reciproc- 
ity Treaty  of  [854  they  were  given  the  right  in  a  restricted 
degree,  the  provision  being  as  follows: — 

Article  II.  "It  is  agreed  by  the  high  contracting  parties  that  British 
subjects  shall  have,  in  common  with  the  citizens  of  the  United  States. 
the  liberty  to  take  fish  of  every  kind,  except  shell  fish,  on  the  eastern 
sea  coasts  and  shores  of  the  United  States  north  of  the  thirty-sixth  ; 
allel  of  north  latitude,  and  on  the  shores  of  the  several  islands  thereunto 
adjacent,  and  in  the  hays,  harbors,  and  creeks  of  the  said  sea  coasts  and 
shores  of  the  United  States  and  of  the  said  island-,  without  being  re- 
stricted to  any  dist. mi  i-  from  the  shore,  with  permission  to  land  upon 
the  said  coasts  of  the  United  States  and  of  the  islands  aforesaid,  for  the 
purpose  of  drying  their  nets  and  curing  their  fish;  provided  that,  in  so 
doing,  thej  do  not  interfere  with  the  rights  of  private  property,  or  with 
the  fishermen  of  the  United  States  in  the  pea/  eable  use  of  any  part 
of  the  said  coasts  in  their  occupancy  for  the  same  purpose. 

"  It  is  understoi  >d  that  the  abi  >ve  menti<  >ned  liberty  applies  solely  t<  >  the 
sea  fishery,  and  that  salmon  and  shad  fisheries,  and  all  fisheries  in  rivers 
and  months  of  rivers  are  hereby  reserved  exclusively  for  fishermen  ol 
the  I'nited  States." 

Under  the  Treat)'  of  1S71  the  right  was  renewed,  hut  re- 
stricted to  the  sea  coast  north  of  the  thirty-ninth  parallel  of 
north  latitude. 

Article  XIX.  "  It  is  agreed  by  the  high  contracting  parties  that  British 
subjects  shall  have,  in  common  with  the  citizens  of  the  I'nited  Stal 
the- liberty,  for  the  term  of  years  mentioned  in  Article  XXXIII.  of  this 
treaty,  to  take  fish  of  every  kind,  except  shell-fish,  on  the  eastern  sea 
coast  and  shores  of  the  United  States  north  of  the  thirty-ninth  parallel 
of  north  latitude,  and  on  the  shores  of  the  several  islands  thereunto  ad- 
jacent, ami  in  the  bays,  harbors,  and  creeks  of  the  said  ists  and 
shores  of  the  United  States,  and  of  the  said  islands,  without  being  re- 
stricted to  any  distance  from  the  shore,  with  permission  to  land  upon 
the  s.iid  coasts  of  the  United  States  and  ol'  the  islands  aforesaid,  for  the 


6o 

purpose  of  drying  their  nets  and  curing  tlieir  fish:  provided  that,  in  so 
doing,  they  do  not  interfere  with  the  rights  of  private  property,  or  with 
the  fishermen  of  the  United  States  in  the  peaceable  use  of  any  part  of 
the  said  coasts  in  their  occupancy  for  the  same  purpose. 

"  It  is  understood  that  the  above-mentioned  liberty  applies  solely  to  the 
sea  fishery,  and  that  salmon  and  shad  fisheries,  and  all  other  fisheries  in 
rivers  and  mouths  of  rivers,  are  hereby  reserved  exclusively  for  fisher- 
men of  the  United  States." 

Both  the  Treaties  of  1854  and  1871  were  careful  to  provide 
that  the  right  did  not  extend  to  shell-fish,  that  it  applied  only 
to  sea  fishery,  and  did  not  extend  to  salmon,  shad,  or  fisheries 
in  rivers  or  mouths  of  rivers. 

No  such  restrictions  are  attached  to  the  privileges  given 
under  the  XII.  provision,  but  on  the  contrary  the  fishing  ves- 
sels of  Canada  and  Newfoundland  have  on  the  Atlantic  coast 
all  the  privileges  reserved  and  secured  by  this  Treaty  to  the 
United  States  fishing  vessels  in  the  aforesaid  waters  of  Canada 
and  Newfoundland. 

The  opinion  of  the  Hon.  Chas.  Levi  Woodbury  upon  this- 
provision  shows  that — 

"  The  effect  of  this  article  is  more  extensive  than  would  appear  on  a 
cursory  reading.  What  are  the  '  aforesaid  waters,'  and  what  '  the  privi- 
leges reserved  and  secured  by  this  treaty,'  which  we  are  required  to  re- 
ciprocate on  our  Atlantic  coasts,  and  what  is  the  measure  of  the  recipro- 
city that  this  article  calls  for? 

"In  '  the  aforesaid  waters  '  we  have  the  '  liberty  '  to  fish  for  all  kinds 
of  tish  near  the  shores,  to  land,  cure,  and  dry  the  fish  on  a  vast  extent 
of  the  coasts  of  Canada  and  Newfoundland,  but  on  a  limited  portion  are 
excluded  from  fishing  within  three  miles  of  the  shore. 

'  This  February  convention  refers  and  relates  to  both  these  classes  of 
waters — see  Article  1 1 — '  the  ports,  bays,  and  harbors  of  the  eastern 
and  north-eastern  coasts  of  Canada  or  of  the  coasts  of  Newfoundland.' 

"Article  10.  'The  bays  and  harbors  of  the  renounced  fishery  district,' 
(Article  1)  'including  certain  interior  portions.'  (Articles.)  Thus  the 
whole  waters  of  the  British  North  American  seacoast  are  included  as  the 
field  tor  finding  all  the  privileges  which  the  treaty  grants  to  the  British 
vessels  on  our  coasts.  'All  the  privileges'  must  be  gleaned  from  the 
treaties. 

' '  This  right  to  fish  and  land,  to  dry  and  cure,  must  be  extended  to  them 
on  all  our  Atlantic  coasts.  No  reservation  is  made  of  any  kind  of  fishing 
nor  of  any  part  of  the  coast,  in  or  outside  of  the  State  lines,  or  of  the 
three-mile-  line,  or  of  private  rights  now  vested.  The  treaty  will  become 
supreme  over  State  conventions  and  laws. 


6i 

"  It  follows  that  the  Canadians  and  Newfoundlanders  can  participate, 
within  three  miles  of  the  <  oasl  ol  the  i  United  States,  in  all  the  loi  al  fish- 
eries, river,  bay,  and  coast.  The  shad,  herring,  lobster,  crab,  snapper, 
terrapin,  bass,  baitfish,  oyster,  shrimp,  clams,  turtle,  and  sponge  fisher- 
ies of  the  Southern  coasts  are  all  laid  open  to  them  as  full)  as  the  i  od, 
hake,  and  haddock,  lobster,  &c,  of  the  Eastern  States. 

"State  laws  are  annulled  and  the  entire  existing  private  rights  in  bays 
and  rivers  now  protected  by  laws  are  wiped  out  by  this  one  articli 
the  treaty.  Delaware  and  Chesapeake  bays,  the  sounds  of  North  Caro- 
lina, South  Carolina.  Georgia,  Florida,  and  their  rivers,  are  all  made 
free  to  the  fishing  of  the  Canadians  and  Newfoundlanders,  in  season  or 
out  of  season,  in  any  mode  they  please  to  employ. 

"  Aye,  they  may  claim  that  the  shores  of  the  Gulf  oi  Mexico  are  pari  of 
the  Atlantic  coasts,  and  Alabama,  Mississippi,  Louisiana,  and  Texas 
may  be  equally  invaded. 

"This  is  not  an  idle  construction  of  Article  12.  The  treaty  becomes 
part  of  Article  1  of  the  treaty  of  iNiSiscc  its  preamble).  It  embr. 
a  wider  scope  than  the  renunciation  clause,  and,  as  the  interpretation  oi 
the  treaty  of  t8i8,  its  clauses  become  -rafted  and  incorporated  integrally 
as  one  substance  with  that  treaty.  There  is  no  escape  by  saying  that 
Articles  to,  11,  and  [2  are  complete  within  themselves,  for  the  last  clause 
of  Article  10  says  'but  this  enumeration  shall  not  permit  other  charges 
inconsistent  with  the  enjoyment  of  the  liberties  reserved  and  secured  by 
the  convention  of  October  20th,  1818.' 

"Can  it  be  denied  this  clause  'reserves  and  secures'  those' '  liberties  ' 
of  [818,  and  brings  them  within  the  descriptive  words  of  Article  12.  as 
'privileges  reserved  and  secured  by  this  treaty'  which  are  to  be  recip- 
rocally enjoyed  by  the  Canadians  and  Newfoundlanders  on  the  Atlantic 
coast  of  the  United  States?  The  words  "liberties"  means  privileges 
rather  than  'rights'  in  all  the  diplomatic  correspondence  of  the  En- 
glish.    The  United  States  reserves  nothing  in  Article  12. 

"  I  think  there  can  be  no  reasonable  doubt  thai  Article  [2  will  justify 
a  British  claim  to  participate  in  all  our  coast,  bay,  sound,  and  river  fish- 
eries, and  will  preclude  Congress  or  the  States  from  passing  any  laws  on 
the  subject  without  British  consent." 

The  catch  of  Canadian  vessels  on  our  coast  are  not  imports 
from  foreign  ports  and  could  therefore  be  brought  into  any  ol 
our  potts  tree  1  >t    chit}'. 

Reply   of  Secretary   of  Treasury   to   Speaker   i<(  the 
1  louse  of  Representatives,  January  10th.  1887. 

We  have  recognized  the  right  which  is  now  freely  exercised 
by  Canadian  vessels  in  our  ports  to  buy  bait  and  supplies  and 
transmit  their  catch  to  Canada. 


62 

And  as  Mr.  Bayard  has  said  :  — 

"  No  governments  have  been  more  earnest  and  resolute  in  insisting 
that  vessels  driven  by  stress  of  weather  into  foreign  harbors  should  not 
be  subject  to  port  exactions  than  the  Governments  of  Great  Britain  and 
the- United  States.  *      Acting  in  this  spirit  the  Government  of 

the  United  States  has  been  zealous,  not  merely  in  opening  its  ports  freely, 
without  charges,  to  vessels  seeking  them  in  storm,  but  in  insisting  that 
its  own  vessels  seeking  foreign  ports  under  such  circumstances  and  ex- 
clusively for  such  shelter  are  not,  tinder  the  laws  of  nations,  subject  to 
custom-house  exactions ;     *       *  while  in  cases  of  vessels  driven 

by  storm  on  inhospitable  coasts  both  Governments  have  asserted  it, 
sometimes  by  extreme  measures  of  redress  to  secure  indemnity  for 
vessels  suffering  under  such  circumstances  from  port  exactions  or  from 
injuries  inflicted  from  shore." 

The  privilege  therefore  granted  under  the  twelfth  provision 
of  fishing  on  our  coast  to  Canadian  fishermen  would  un- 
questionably be  exercised  by  them  free  from  the  vexations 
and  annoyances  inflicted  by  them  upon  our  fishermen. 

No  matter  what  may  be  the  local  laws  of  our  States  on  the 
subject  of  fisheries,  this  article  in  the  treaty  would  be  the 
supreme  law  of  the  land. 

*  All  treaties  made  or  which  shall  be  made  under 
the  authority  of  the  United  States  shall  be  the  supreme  law  of 
the  land ;  and  the  Judges  in  every  State  shall  be  bound  there- 
by anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding." 

Constitution  of  the  United  States,  Section  2,  Article  VI. 

The  stipulations  of  a  treaty  are  paramount  to  the  provisions 
of  the  Constitution  of  a  particular  State  of  the  United  States 
(Gordon's  Lessee  vs.  Kerr,  1  Wash.  C.  C.  R.,  322),  and  the 
adoption  of  a  treaty  with  stipulations  of  which  the  provisions 
of  a  State  law  are  inconsistent  is  equivalent  to  a  repeal  of 
such  law  (Fisher's   Lessee  vs.  Harnden,  1  Paine  C.  C.  R.,  58). 

From  our  experience  with  Canada  we  can  be  satisfied 
that  whatever  possible  claim  could  be  asserted  by  her  under 
this  or  any  other  provision  of  the  proposed  Treaty  would 
be  asserted  whenever  it  appeared  to  be  for  her  interest  to 
do  so. 


63 

As  Canada  is  given  the  same  privileges  on  our  coast  as  are 
"reserved  and  secured"  to  us  in  the  waters  on  the  coast  ol 
Canada,  it  cannot  be  said  that  Canada  would  obtain  little  by 
this  provision.  It  her  privileges  on  our  coast  would  be  oi 
little  value  then  our  fishery  rights  have  been  so  whittled  away 
as  to  be  of  little  value.  The  value  and  extent  of  her  rights  on 
our  coast  must  necessarily  be  the  same  under  that  provision  as 
ours  on  her  coast.  Our  rights  under  the  treaties  of  [783  and 
181S  have  been  considered  invaluable,  as  these  rights  are  oi 
the  same  character  as  those  of  Canada  itself.  Canada  has 
been  jealous  oi  them  and  endeavored  to  restrict  them.  It 
the}-  have  been  fully  maintained  by  the  proposed  treaty  and 
none  of  them  abandoned,  then  it  has  been  proposed  by  this 
provision  to  grant  similar  rights  to  her  on  our  coast.  If  our 
rights  have  1  een  maintained  under  the  proposed  treaty  then 
her  rights  are  great.  Nothing  could  express  more  clearly 
than  Article  XII.  the  intention  to  give  reciprocal  privileges, 
and,  measuring  the  treat}'  by  this  provision  of  it,  nothing 
can  better  show  that  privileges  have  been  granted  to  Canada 
which  should  not  have  been  granted,  or  that  rights  have  been 
surrendered  which  should  have  been  maintained  at  all  hazards. 

Article  XIV.  provides  that  the  penalties  for  unlawful  fish- 
ing "  may  extend  to  forfeiture  of  the  boat  or  vessel  and  appur- 
tenances, and  also  of  the  supplies  and  cargo  aboard  when  the 
offense  was  committed."  Under  the  British  Sea  Fisheries 
Act  of  1868  and  1883  this  offense  when  committed  in  British 
waters  by  French  vessels  and  those  of  other  countries  is  pun- 
ishable by  fine  only,  and  that  not  exceeding  ,£10  for  the  first 
and  ^"20  for  the  second  offense. 

Article  XV.  in  effect  says  that  our  fishing  vessels  have  not, 
and  until  the  United  States  shall  remove  the  duties  upon  the 
fish  products  of  Canada  and  Newfoundland  shall  not  have, 
the  right  to  enter  the  bays  and  harbors  of  Canada  and  New- 
foundland to  purchase  bait  or  supplies,  transship  their  catch, 
or  ship  crews.  We  did  not  even  retain  what  is  allowed  French 
fishermen  under  their  Treat}-  of   1885 — 

•Tlie  French  fishermen  shall  have  the  right  to  buy  bait,  herring,  and 
caplin,  <>n  land  or  at  sea,  in  the  harbors  of  Newfoundland,  withoul  tax  or 


64 

impediment   of  any  kind,  after  the  fifth  day  of  April  of  each   year,  and 
until  the  end  of  the  fishing  season." 

Art.  XVII.,  Treat}'  between  France  and  Great  Britain, 
Newfoundland  Fisheries,  Paris,  Nov.  14,  [885. 

Article  IX.  of  the  treat}-  provides  that  "  nothing  in  this 
treaty  shall  interrupt  or  affect  the  free  navigation  of  the 
Straits  of  Canso  by  fishing  vessels  of  the  United  States." 

In  the  spirit  of  a  general  denial  and  restriction  of  our  rights 
Canada  suggested  in  1836  a  question  with  regard  to  our  right 
to  navigate  the  Straits  of  Canso.  While  our  fishermen  do 
not  fish  or  claim  to  fish  in  the  strait  the  use  of  the  strait  is 
necessary  to  save  a  long,  difficult,  and  at  some  seasons  of  the 
year  a  dangerous  voyage  around  the  Island  of  Cape  Breton, 
in  going  to  or  coming  from  the  Gulf  of  St.  Lawrence  where 
our  right  to  fish  is  unquestioned.  The  safety  and  convenience 
of  our  vessels  require  the  use  of  the  strait,  and  its  use  by  them 
harms  no  one. 

Sabine's  Report  on  the  Fisheries,  page  465. 

"  Straits  are  passages  communicating  from  one  sea  to  another.  If  the 
use  of  these  seas  is  free,  the  communications  ought  to  be  equally  free, 
for  otherwise  the  liberty  of  these  seas  would  be  a  chimera.  It  is  not 
sufficient,  therefore,  in  order  that  property  in  a  strait  may  be  attributed 
to  a  nation  mistress  of  its  shores  to  say  that  the  strait  is  actually  in  the 
power  of  this  nation,  that  it  has  the  means  of  controlling  the  passage  by 
its  artillery  or  by  any  other  mode  of  action  or  defense  ;  in  a  word  that  it 
is  able  to  have  the  waters  really  in  its  possession." 

Vol.  I,  page  146,  Ortolan,  Diplomatic  de  la  Mer. 

"  Straits  are  passages  communicating  from  one  sea  to  another.  If  the 
navigation  of  two  seas  thus  connected  is  free,  the  navigation  of  the 
channel  by  which  they  are  connected  ought  also  to  be  free.  Even  if  such 
strait  be  bounded  on  both  sides  by  the  territory  of  the  same  sovereign, 
and  is  at  the  same  time  so  narrow  as  to  be  commanded  by  cannon  shot 
from  both  shores,  the  exclusive  territorial  jurisdiction  of  that  sovereign 
over  such  strait  is  controlled  by  the  right  of  other  nations  to  communi- 
cate with  the  seas  thus  connected." 

Lawrence's  Wheaton,  Int.  Law,  page  328. 

When  it  is  remembered  that  our  right  to  fish  in  the  Gulf 
of  St.  Lawrence  is  admitted;  that  it  is  necessary  to  use  this 
strait  to  reach   the  gulf;   that  Canada  has  never  dared  to  seize 


65 

a  fishing  vessel  of  the  United  States  on  its  way  to  or  coming 
from  the  Gulf  of  St.  Lawrence  ;  that  it  would  be  a  violation 
of  a  fundamental  principle  of  international  law  and  of  comity 
to  interfere  with  our  vessels  while  so  using  the  strait,  it  can 
hardly  be  conceived  that  Canada  would  insist  upon  her  claim 
to  close  the  strait  to  American  vessels.  The  British  Commis- 
sioners did  not  ever  present  this  claim,  but  on  the  contrary 
they  of  their  own  motion  inserted  this  provision. 

Mr.  Tupper,  in   explaining    this  article   to  the   House   of 
Commons,  said  : — 

"  I  may  explain  to  the  house  that  that  was  not  a  sum  nder 
of  British  interests  or  Canadian  interests  at  the  dictation  or 
at  the  request  of  the  plenipotentaries  of  the  United  State-. 
That  clause  was  inserted  in  tlie  treaty  by  ourselves,  and  for 
this  reason:  That  the  rule  for  the  delimitation  which  was 
adopted,  the  ten-mile  rule,  would  have  necessarily  excluded, 
if  we  took  in  Chedabucto  Bay,  which  we  did  take  in  by  making 
the  delimitation,  as  honorable  gentlemen  will  sec.  not  from 
one  side  of  the  main  land  of  the  bay  to  the  other,  which  would 
have  opened  it  to  the  United  State's,  but  from  the  island 
between;  by  that  delimitation  the  United  States  would  have 
been  shut  out  altogether  from  passing  through  the  Strait-  ol 
Canso,  because  they  could  not  have  gone  into  Chedabucto 
Bay,  and  therefore  they  asked  that  Chedabucto  Bay  should 
be  excluded  from  the  delimitation,  which  made  it  an  exclusive 
ba\  ,  in  order  to  prevent  their  being  shut  out  of  the  navigation 
«.f  the  Straits  of  Canso.  Well,  sir,  under  those  circumstan 
we  met  that  by  providing  nothing  new.  We  provided  simply 
that  nothing  in  this  treaty  should  interrupt  the  free  navigation 
of  the  Straits  <>f  Canso,  as  previously  enjoyed  by  fishing  ves- 
sels, t<>  which  we  confined  it,  and  in  that  way  we  avoided  mak 
ing  an  exception  of  Chedabucto  Bay,  which  is  the  entrance 
from  the  Atlantic  side  of  the  Straits  of  Cans,,." 

Unfortunately  this  provision  refers  to"fishing  vessels  "only, 
so  that  if  the  treaty  had  been  ratified  Canada  could  and  would 
have  claimed  that  it  recognized  her  right  to  close  the  strait  to 
all  American  vessels,  and  that  American  fishing  vessels  only 
could  navigate  the  strait. 


66 

The  article  inserted  by  the  British  Commissioners  on  their 
own  motion  is  pointed  out,  however,  as  a  great  triumph  by 
our  Commissioners. 

"  The  uninterrupted  navigation  of  the  Straits  of  Canso  is 
expressly  and  for  the  first  time  confirmed,"  says  President 
Cleveland. 

Under  some  circumstances  it  would  not  be  said  that  the 
IX.  provision  is  one  to  be  grateful  for,  but  probably  when  the 
treaty  as  a  whole  is  examined  we  can  join  President  Cleve- 
land in  his  congratulations  that  this  much,  at  all  events,  has 
been  retained  for  our  fishing  vessels. 

We  are  told  of  the  young  physician  who,  having  been 
called  in  at  an  event  in  a  family,  was  asked  by  an  anxious 
friend  how  the  mother  and  child  were  doing,  and  of  his  en- 
thusiastic reply,  "  Oh!  the  mother  and  child  are  dead,  but  the 
old  man  is  safe."  So  while  the  treaty  rights  of  1783  and  1 8 18 
were  surrendered  under  the  proposed  treat}-,  we  have  the 
enthusiastic  declaration  that  our  fishing  vessels  will  still  have 
the  right  to  navigate  the  Straits  of  Canso. 

Without  commenting  upon  the  provision  that  "  every 
United  States  fishing  vessel,"  without  limiting  its  application 
to  those  engaged  in  fishing  on  the  Canadian  coast,  shall  have 
"  its  official  number  on  each  bow,"  or  upon  the  words  "  wood 
and  water"  in  the  tenth  clause  (after  the  denial  of  Canada  that 
the  word  "  wood  "  in  the  Treaty  of  18 18  means  fuel,  and  that 
consequently  our  vessels  are  forbidden  to  purchase  coal  for 
fuel),  or  upon  the  absence  of  any  provision  securing  indem- 
nity for  our  vessels  deprived  of  treaty  rights,  driven  out  of 
port  into  storms,  without  food  or  supplies,  or  the  inhumanity 
and  brutality  inflicted  on  our  fishermen,  we  have  a  treaty 
based  not  upon  our  great  and  ancient  fishing  rights  as  evi- 
denced by  the  Treaties  of  1 783  and  18 18,  but  upon  the  theory 
that  the  Treaty  of  1783  has  no  existence  and  that  we  are 
entitled  only  to  the  mere  "fishing  rights  of  one  nation  in  the 
jurisdictional  waters  of  another,"  not  upon  the  theory  of"  our" 
fisheries  but  theirs,  a  treaty  that  absolutely  surrenders  princi- 
ples which  have  at  all  hazards  been  strenuously  contended  for 
and  maintained  since  the  organization  of  our  Government — a 
treaty  that  sells  our  birthright  for  ajmess  of  pottage. 


"7 

The  question  naturally  recurs,  Why  this  desire,  why  this 
anxiety  to  press  the  adoption  of  this  treaty,  when  the  Treat 
of  [783  and  [818,  if  fairly  complied  with  or  enforced  accord- 
ing to  their  terms,  are  sufficient  for  our  purposes;  when  our 
experience  with  Canada  in  the  past  in  performing  treaty  obli- 
gations has  not  been  such  as  to  assure  us  that  any  new  treaty 
would  receive  from  her  any  greater  respect;  when  the  Senate 
by  a  majority  of  25  declared  in  [886  that  the  appointment  oi 
commissioners  to  frame  a  new  treat}'  was  not  advisable;  and 
when  the  Executive  has  declined  to  furnish  to  the  Senate  the 
papers  and  information  concerning  the  progress  of  the  m 
tiations  of  the  treat}',  including  the  proposals  and  counterpro- 
posals made  ? 

Altogether  is  there  not  reason  for  regret  and  for  some  ap- 
prehension that  the  Chief  Executive  of  this  country,  notwith- 
standing the  rejection  of  the  proposed  Treaty,  should  officially 
reassert  "  that  its  provisions  were  adequate  for  our  security  in 
the  future  from  vexatious  incidents,  and  for  the  promotion  of 
friendly  neighborhood  and  intimacy,  without  sacrificing  in 
the  least  our  national  pride  or  dignity." 

Certainly  a  change  has  come  over  the  people  of  this  country 
if  we  cannot  say,  as  Lewis  Cass  said  in  the  Senate  in  [852 
(vol.  25,  App.  Cong.  Globe,  page  895),  in  referring  to  our  right 
to  fish  in  the  North  Atlantic  and  the  methods  then  adopted 
to  harass  and  annoy  our  fishermen  in  the  exercise  of  that 
right:  "  We  mean  to  hold  on  to  it  through  the  whole  extent 
of  the  great  deep,  now  in  the  days  of  our  strength,  as  our 
fathers  held  on  to  it  in  the  days  of  our  weakness.  Should 
we  abandon  this  attribute  of  independence,  even  in  any  ex- 
tremity which  human  sagacity  can  foresee,  we  should  prove 
recreant  both  to  the  glories  of  the  past  and  to  the  hopes  of 
the  future,  to  the  deeds  of  our  fathers  and  to  the  j  u-t  expecta- 
tions of  our  children.  I  know  hut  little  of  the  character  of 
my  countrymen,  if  they  would  not  reject  with  indignation  any 
proposition  thus  to  tarnish  their  history,  and  to  write  their 
own  dishonor  upon  it." 


